Report of the committee to whom were referred the communications of
various states relative to the resolutions of the General Assembly of this
state, concerning the Alien and Sedition-Laws.

WHATEVER room might be found
in the proceedings of some of the states who have disapproved of the
resolutions of the General Assembly of this commonwealth, passed on the 21st
day of December, 1798, for painful remarks on the spirit and manner of those
proceedings, it appears to the committee most consistent with the duty, as well
as dignity of the General Assembly, to hasten an oblivion of every circumstance
which might be construed into a diminution of mutual respect, confidence, and
affection, among the members of the Union.

The committee have deemed it a more useful task, to revise, with a critical
eye, the resolutions which have met with this disapprobation; to examine fully
the several objections and arguments which have appeared against them; and to
inquire whether there be any errors of fact, of principle, or of reasoning,
which the candour of the General Assembly ought to acknowledge and correct.

The first of the resolutions is in the words following:

Resolved, That the General Assembly of Virginia doth unequivocally
express a firm resolution to maintain and defend the Constitution of the United
States, and the Constitution of this state, against every aggression, either
foreign or domestic, and that they will support the government of the United
States in all measures warranted by the former.

No unfavourable comment can have been made on the sentiments here expressed.
To maintain and defend the Constitution of the United States, and of their own
state, against every aggression, both foreign and domestic, and to support the
government of the United States in all measures warranted by their
Constitution, are duties which the General Assembly ought always to feel, and
to which, on such an occasion, it was evidently proper to express its sincere
and firm adherence.

In their next resolution — The General Assembly most solemnly
declares a warm attachment to the union of the states, to maintain which it
pledges all its powers; and that, for this end, it is its duty to watch over
and oppose every infraction of those principles, which constitute the only
basis of that union, because a faithful observance of them can alone secure its
existence and the public happiness.

The observation just made is equally applicable to this solemn declaration,
of warm attachment to the union, and this solemn pledge to maintain it; nor can
any question arise among enlightened friends of the union, as to the duty of
watching over and opposing every infraction of those principles which
constitute its basis, and a faithful observance of which can alone secure its
existence, and the public happiness thereon depending.

The third resolution is in the words following:

That this Assembly doth explicitly and peremptorily declare, that it
views the powers of the Federal Government, as resulting from the compact, to
which the states are parties, as limited by the plain sense and intention of
the instrument constituting that compact; as no farther valid than they are
authorized by the grants enumerated in that compact; and that in case of a
deliberate, palpable and dangerous exercise of other powers, not granted by the
said compact, the states who are parties thereto have the right, and are in
duty bound, to interpose for arresting the progress of the evil, and for
maintaining within their respective limits, the authorities, rights, and
liberties appertaining to them.

On this resolution, the committee have bestowed all the attention which its
importance merits; they have scanned it not merely with a strict, but with a
severe eye; and they feel confidence in pronouncing, that, in its just and fair
construction, it is unexceptionably true in its several positions, as well as
constitutional and conclusive in its inferences.

The resolution declares, first, that "it views the powers of the
Federal Government, as resulting from the compact to which the states are
parties;" in other words, that the Federal powers are derived from the
Constitution, and that the Constitution is a compact to which the states are
parties.1

Clear as the position must seem, that the federal powers are derived from
the Constitution, and from that alone, the committee are not unapprised of a
late doctrine, which opens another source of federal powers, not less extensive
and important, than it is new and unexpected. The examination of this doctrine
will be most conveniently connected with a review of a succeeding resolution.
The committee satisfy themselves here with briefly remarking, that in all the
cotemporary discussions and comments which the Constitution underwent, it was
constantly justified and recommended, on the ground, that the powers not given
to the government, were withheld from it; and that, if any doubt could have
existed on this subject, under the original text of the Constitution, it is
removed, as far as words could remove it, by the 12th amendment, now a part of
the Constitution, which expressly declares, "that the powers not delegated
to the United States, by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people."

The other position involved in this branch of the resolution, namely,
"that the states are parties to the Constitution or compact," is, in
the judgment of the committee, equally free from objection. It is indeed true,
that the term "states," is sometimes used in a vague sense, and
sometimes in different senses, according to the subject to which it is applied.
Thus, it sometimes means the separate sections of territory occupied by the
political societies within each; sometimes the particular governments,
established by those societies; sometimes those societies as organized into
those particular governments; and, lastly, it means the people composing those
political societies, in their highest sovereign capacity. Although it might be
wished that the perfection of language admitted less diversity in the
signification of the same words, yet little inconveniency is produced by it,
where the true sense can be collected with certainty from the different
applications. In the present instance, whatever different constructions of the
term "states," in the resolution, may have been entertained, all will
at least concur in that last mentioned; because, in that sense, the
Constitution was submitted to the "states," in that sense the
"states" ratified it; and, in that sense of the term
"states," they are consequently parties to the compact, from which
the powers of the federal government result.2

The next position is, that the General Assembly views the powers of the
federal government, "as limited by the plain sense and intention of the
instrument constituting that compact," and "as no farther valid than
they are authorized by the grants therein enumerated." It does not seem
possible, that any just objection can lie against either of these clauses. The
first amounts merely to a declaration, that the compact ought to have the
interpretation plainly intended by the parties to it; the other to a
declaration, that it ought to have the execution and effect intended by them.
If the powers granted, be valid, it is solely because they are granted: and, if
the granted powers are valid, because granted, all other powers not granted,
must not be valid.

The resolution, having taken this view of the federal compact, proceeds to
infer, "that, in case of a deliberate, palpable, and dangerous exercise of
other powers, not granted by the said compact, the states, who are parties
thereto, have the right and are in duty bound to interpose for arresting the
progress of the evil, and for maintaining within their respective limits, the
authorities, rights, and liberties appertaining to them."

It appears to your committee to be a plain principle, founded in common
sense, illustrated by common practice, and essential to the nature of compacts,
that, where resort can be had to no tribunal, superior to the authority of the
parties, the parties themselves must be the rightful judges in the last resort,
whether the bargain made has been pursued or violated. The Constitution of the
United States was formed by the sanction of the states, given by each in its
sovereign capacity. It adds to the stability and dignity, as well as to the
authority of the Constitution, that it rests on this legitimate and solid
foundation. The states, then, being the parties to the constitutional compact,
and in their sovereign capacity, it follows of necessity, that there can be no
tribunal above their authority, to decide in the last resort, whether the
compact made by them be violated; and, consequently, that, as the. parties to
it, they must themselves decide, in the last resort, such questions as may be
of sufficient magnitude to require their interposition.

It does not follow, however, that because the states, as sovereign parties
to their constitutional compact, must ultimately decide whether it has been
violated, that such a decision ought to be interposed, either in a hasty
manner, or on doubtful and inferior occasions. Even in the case of ordinary
conventions between different nations, where, by the strict rule of
interpretation, a breach of a part may be deemed a breach of the whole, every
part being deemed a condition of every other part and of the whole, it is
always laid down that the breach must be both wilful and material to justify an
application of the rule. But in the case of an intimate and constitutional
union, like that of the United States, it is evident that the interposition of
the parties, in their sovereign capacity, can be called for by occasions only,
deeply and essentially affecting the vital principles of their political
system.

The resolution has accordingly guarded against any misapprehension of its
object, by expressly requiring for such an interposition, "the case of a
deliberate, palpable, and dangerous breach of the Constitution,
by the exercise of powers not granted by it." It must be a case,
not of a light and transient nature, but of a nature dangerous to the
great purposes for which the Constitution was established. It must be a case,
moreover, not obscure or doubtful in its construction, but plain and
palpable. Lastly, it must be a case not resulting from a partial
consideration, or hasty determination; but a case stamped with a final
consideration and deliberate adherence. It is not necessary, because the
resolution does not require that the question should be discussed, how far the
exercise of any particular power, ungranted by the Constitution, would justify
the interposition of the parties to it. As cases might easily be stated, which
none would contend ought to fall within that description; cases, on the other
hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite
every opinion in placing them within that description.3

But the resolution has done more than guard against misconstruction, by
expressly referring to cases of a deliberate, palpable, and dangerous
nature. It specifies the object of the interposition which it contemplates,
to be solely that of arresting the progress of the evil of usurpation,
and of maintaining the authorities, rights, and liberties appertaining to the
states, as parties to the Constitution.

From this view of the resolution, it would seem inconceivable that it can
incur any just disapprobation from those who, laying aside all momentary
impressions, and recollecting the genuine source and object of the Federal
Constitution, shall candidly and accurately interpret the meaning of the
General Assembly. If the deliberate exercise of dangerous powers, palpably
withheld by the Constitution, could not justify the parties to it, in
interposing even so far as to arrest the progress of the evil, and thereby to
preserve the Constitution itself, as well as to provide for the safety of the
parties to it, there would be an end to all relief from usurped power, and a
direct subversion of the rights specified or recognised under all the state
constitutions, as well as a plain denial of the fundamental principle on which
our independence itself was declared.

But it is objected that the judicial authority is to be regarded as the sole
expositor of the Constitution, in the last resort; and it may be asked for what
reason, the declaration by the General Assembly, supposing it to be
theoretically true, could be required at the present day and in so solemn a
manner.

On this objection it might be observed, first, that there may be
instances of usurped power, which the forms of the Constitution would never
draw within the control of the judicial department;4secondly, that if the decision of the
judiciary be raised above the authority of the sovereign parties to the
Constitution, the decisions of the other departments, not carried by the forms
of the Constitution before the judiciary, must be equally authoritative and
final with the decisions of that department. But the proper answer to the
objection is, that the resolution of the General Assembly relates to those
great and extraordinary cases, in which all the forms of the Constitution may
prove ineffectual against infractions dangerous to the essential rights of the
parties to it. The resolution supposes that dangerous powers, not delegated,
may not only be usurped and executed by the other departments, but that the
judicial department also may exercise or sanction dangerous powers beyond the
grant of the Constitution; and, consequently, that the ultimate right of the
parties to the Constitution, to judge whether the compact has been dangerously
violated, must extend to violations by one delegated authority, as well as by
another; by the judiciary, as well as by the executive, or the legislature.

However true, therefore, it may be, that the judicial department, is, in all
questions submitted to it by the forms of the Constitution, to decide in the
last resort, this resort must necessarily be deemed the last in relation to the
authorities of the other departments of the government; not in relation to the
rights of the parties to the constitutional compact, from which the judicial as
well as the other departments hold their delegated trusts. On any other
hypothesis, the delegation of judicial power would annul the authority
delegating it; and the concurrence of this department with the others in
usurped powers, might subvert for ever, and beyond the possible reach of any
rightful remedy, the very Constitution which all were instituted to preserve.

The truth declared in the resolution being established, the expediency of
making the declaration at the present day, may safely be left to the temperate
consideration and candid judgment of the American public. It will be remembered
that a frequent recurrence to fundamental principles, is solemnly enjoined by
most of the state constitutions, and particularly by our own, as a necessary
safeguard against the danger of degeneracy to which republics are liable, as
well as other governments, though in a less degree than others. And a fair
comparison of the political doctrines not unfrequent at the present day, with
those which characterized the epoch of our revolution, and which form the basis
of our republican constitutions, will best determine whether the declaratory
recurrence here made to those principles, ought to be viewed as unseasonable
and improper, or as a vigilant discharge of an important duty. The authority of
constitutions over governments, and of the sovereignty of the people over
constitutions, are truths which are at all times necessary to be kept in mind;
and at no time perhaps more necessary than at the present.

The fourth resolution stands as follows:

That the General Assembly doth also express its deep regret, that a
spirit has in sundry instances, been manifested by the federal government, to
enlarge its powers by forced constructions of the constitutional charter which
defines them; and that indications have appeared of a design to expound certain
general phrases, (which, having been copied from the very limited grant of
powers in the former articles of confederation, were the less liable to be
misconstrued,) so as to destroy the meaning and effect of the particular
enumeration which necessarily explains, and limits the general phrases; and so
as to consolidate the states, by degrees, into one sovereignty, the obvious
tendency and inevitable result of which would be, to transform the present
republican system of the United States info an absolute, or, at best, a mixed
monarchy.

The first question here to be considered is, whether a spirit has in
sundry instances been manifested by the Federal Government to enlarge its
powers by forced constructions of the constitutional charter.

The General Assembly having declared its opinion merely by regretting in
general terms that forced constructions for enlarging the federal powers have
taken place, it does not appear to the committee necessary to go into a
specification of every instance to which the resolution may allude. The alien
and sedition-acts being particularly named in a succeeding resolution, are of
course to be understood as included in the allusion. Omitting others which have
less occupied public attention, or been less extensively regarded as
unconstitutional, the resolution may be presumed to refer particularly to the
bank law,5 which from the circumstances of
its passage, as well as the latitude of construction on which it is founded,
strikes the attention with singular force; and the carriage tax,6
distinguished also by circumstances in its history having a similar tendency.
Those instances, alone, if resulting from forced construction and calculated to
enlarge the powers of the Federal Government, as the committee cannot but
conceive to be the case, sufficiently warrant this part of the resolution. The
committee have not thought it incumbent on them to extend their attention to
laws which have been objected to, rather as varying the constitutional
distribution of powers in the Federal Government, than as an absolute
enlargement of them; because instances of this sort, however important in their
principles and tendencies, do not appear to fall strictly within the text under
review.

The other questions presenting themselves, are — 1. Whether indications
have appeared of a design to expound certain general phrases copied from the
"articles of confederation" so as to destroy the effect of the
particular enumeration explaining and limiting their meaning. 2. Whether this
exposition would by degrees consolidate the states into one sovereignty. 3.
Whether the tendency and result of this consolidation would be to transform the
republican system of the United States into a monarchy.

1. The general phrases here meant must be those "of providing for the
common defence and general welfare."

In the "articles of confederation," the phrases are used as
follows, in Art. VIII. "All charges of war, and all other expenses that
shall be incurred for the common defence and general welfare, and
allowed by the United Slates in Congress assembled, shall be defrayed out of a
common treasury, which shall be supplied by the several states, in proportion
to the value of all land within each state, granted to, or surveyed for any
person, as such land and the buildings and improvements thereon shall be
estimated, according to such mode as the United States in Congress assembled
shall from time to time direct and appoint."

In the existing Constitution, they make the following part of Sec. 8,
"The Congress shall have power to lay and collect taxes, duties, imposts,
and excises, to pay the debts, and to provide for the common defence and
general welfare of the United States."

This similarity in the use of these phrases in the two great federal
charters, might well be considered, as rendering their meaning less liable to
be misconstrued in the latter; because it will scarcely be said, that in the
former they were ever understood to be either a general grant of power, or to
authorize the requisition or application of money by the old Congress to the
common defence and general welfare, except in the cases afterwards enumerated,
which explained and limited their meaning; and if such was the limited meaning
attached to these phrases in the very instrument revised and remodelled by the
present Constitution, it can never be supposed that when copied into this
Constitution, a different meaning ought to be attached to them.

That, notwithstanding this remarkable security against misconstruction, a
design has been indicated to expound these phrases in the Constitution, so as
to destroy the effect of the particular enumeration of powers by which it
explains and limits them, must have fallen under the observation of those who
have attended to the course of public transactions. Not to multiply proofs on
this subject, it will suffice to refer to the debates of the federal
legislature, in which arguments have on different occasions been drawn, with
apparent effect, from these phrases, in their indefinite meaning.

To these indications might be added, without looking farther, the official
report on manufactures, by the late Secretary of the Treasury, made. on the 5th
of December, 1791; and the report of a committee of Congress, in January, 1797,
on the promotion of agriculture. In the first of these it is expressly
contended to belong "to the discretion of the national legislature to
pronounce upon the objects which concern the general welfare, and for
which, under that description, an appropriation of money is requisite and
proper. And there seems to be no room for a doubt, that whatever concerns the
general interests of LEARNING, of AGRICULTURE, of MANUFACTURES, and of
COMMERCE, are within the sphere of the national
councils, as far as regards the application of money."7 The latter report assumes the same latitude of power
in the national councils, and applies it to the encouragement of agriculture by
means of a society to be established at the seat of government.8 Although neither of these reports may have received
the sanction of a law carrying it into effect, yet, on the other hand, the
extraordinary doctrine contained in both, has passed without the slightest
positive mark of disapprobation from the authority to which it was addressed.

Now, whether the phrases in question be construed to authorize every measure
relating to the common defence and general welfare, as contended by some; or
every measure only in which there might be an application of money, as
suggested by the caution of others; the effect must substantially be the same,
in destroying the import and force of the particular enumeration of powers
which follow these general phrases in the Constitution. For it is evident that
there is not a single power whatever, which may not have some reference to the
common defence, or the general welfare; nor a power of any magnitude, which, in
its exercise, does not involve or admit an application of money. The
government, therefore, which possesses power in either one or other of these
extents, is a government without the limitations formed by a particular
enumeration of powers; and consequently, the meaning and effect of this
particular enumeration is destroyed by the exposition given to these general
phrases.

This conclusion will not be affected by an attempt to qualify the power over
the "general welfare," by referring it to cases where the general
welfare is beyond the reach of separate provisions by the
individual states; and leaving to these their jurisdictions, in cases to
which their separate provisions may be competent. For, as the authority of the
individual states must in all cases be incompetent to general regulations
operating through the whole, the authority of the United States would be
extended to every object relating to the general welfare, which might, by any
possibility, be provided for by the general authority. This qualifying
construction, therefore, would have little, if any tendency, to circumscribe
the power claimed under the latitude of the terms "general welfare."

The true and fair construction of this expression, both in the original and
existing federal compacts, appears to the committee too obvious to be mistaken.
In both, the Congress is authorized to provide money for the common defence and
general welfare. In both, is subjoined to this authority, an enumeration
of the cases to which their powers shall extend. Money cannot be applied to the
general welfare otherwise than by an application of it to some
particular measures, conducive to the general welfare. Whenever, therefore,
money has been raised by the general authority, and is to be applied to a
particular measure, a question arises whether the particular measure be within
the enumerated authorities vested in Congress. If it be, the money requisite
for it may be applied to it; if it be not, no such application can be made.
This fair and obvious interpretation coincides with, and is enforced by the
clause in the Constitution, which declares, that "no money shall be drawn
from the treasury, but in consequence of appropriations by law." An
appropriation of money to the general welfare would be deemed rather a mockery
than an observance of this constitutional injunction.

2. Whether the exposition of the general phrases here combated would not, by
degrees, consolidate the states into one sovereignty, is a question concerning
which the committee can perceive little room for difference of opinion. To
consolidate the states into one sovereignty, nothing more can be wanted, than
to supersede their respective sovereignties in the cases reserved to them, by
extending the sovereignty of the United States, to all cases of the
"general welfare," that is to say, to all cases whatever.

3. That the obvious tendency and inevitable result of a consolidation of the
states into one sovereignty, would be to transform the republican system of the
United States into a monarchy, is a point which seems to have been sufficiently
decided by the general sentiment of America. In almost every instance of
discussion, relating to the consolidation in question, its certain tendency to
pave the way to monarchy seems not to have been contested. The prospect of such
a consolidation has formed the only topic of controversy. It would be
unnecessary, therefore, for the committee to dwell long on the reasons which
support the position of the General Assembly. It may not be improper, however,
to remark two consequences evidently flowing from an extension of the federal
powers to every subject falling within the idea of the "general
welfare."

One consequence must be, to enlarge the sphere of discretion allotted to the
executive magistrate. Even within the legislative limits properly denned by the
Constitution, the difficulty of accommodating legal regulations to a country so
great in extent, and so various in its circumstances, has been much felt; and
has led to occasional investments of power in the executive, which involve
perhaps as large a portion of discretion as can be deemed consistent with the
nature of the executive trust. In proportion as the objects of legislative care
might be multiplied, would the time allowed for each be diminished, and the
difficulty of providing uniform and particular regulations for all be
increased. From these sources would necessarily ensue a greater latitude to the
agency of that department which is always in existence, and which could best
mould regulations of a general nature, so as to suit them to the diversity of
particular situations. And it is in this latitude, as a supplement to the
deficiency of the laws, that the degree of executive prerogative materially
consists.

The other consequence would be that of an excessive augmentation of the
offices, honours, and emoluments depending on the executive will. Add to the
present legitimate stock, all those of every description which a consolidation
of the states would take from them, and turn over to the Federal Government,
and the patronage of the executive would necessarily be as much swelled in this
case, as its prerogative would be in the other.

This disproportionate increase of prerogative and patronage must, evidently,
either enable the chief magistrate of the Union, by quiet means, to secure his
re-election from time to time, and finally, to regulate the succession as he
might please; or, by giving so transcendent an importance to the office, would
render the elections to it so violent and corrupt, that the public voice itself
might call for an hereditary, in place of an elective succession. Whichever of
these events might follow, the transformation of the republican system of the
United States into a monarchy, anticipated by the General Assembly from a
consolidation of the states into one sovereignty, would be equally
accomplished; and whether it would be into a mixed or an absolute monarchy,
might depend on too many contingencies to admit of any certain foresight.

The resolution next in order, is contained in the following terms:

That the General Assembly doth particularly protest against the palpable
and alarming infractions of the Constitution, in the two late cases of the
"alien and sedition-acts," passed at the last session of Congress;
the first of which exercises a power nowhere delegated to the Federal
Government; and which, by uniting legislative and judicial powers to those of
executive, subverts the general principles of a free Government, as well as the
particular organization and positive provisions of the Federal Constitution;
and the other of which ads exercises, in like manner, a power not delegated by
the Constitution; but, on the contrary, expressly and positively forbidden by
one of the amendments thereto: a power which, more than any other, ought to
produce universal alarm; because, it is levelled against that right of freely
examining public characters and measures, and of free communication among the
people thereon, which has ever been justly deemed the only effectual guardian
of every other right.

The subject of this resolution having, it is presumed, more particularly led
the General Assembly into the proceedings which they communicated to the other
states, and being in itself of peculiar importance, it deserves the most
critical and faithful investigation; for the length of which no other apology
will be necessary.

The subject divides itself into first, "The alien-act,"
secondly, "The sedition-act."

I. Of the "alien-act," it is affirmed by the resolution, 1st. That
it exercises a power nowhere delegated to the Federal Government. 2d. That it
unites legislative and judicial powers to those of the executive. 3d. That this
union of power subverts the general principles of free government. 4th. That it
subverts the particular organization and positive provisions of the Federal
Constitution.

In order to clear the way for a correct view of the first position, several
observations will be premised.

In the first place, it is to be borne in mind, that it being a
characteristic feature of the Federal Constitution, as it was originally
ratified, and an amendment thereto having precisely declared, "That the
powers not delegated to the United States by the Constitution, nor prohibited
by it to the states, are reserved to the states respectively, or to the
people," it is incumbent in this, as in every other exercise of power by
the Federal Government, to prove from the Constitution, that it grants the
particular power exercised.

The next observation to be made is, that much confusion and fallacy have
been thrown into question, by blending the two cases of aliens, members of a
hostile nation; and aliens, members of friendly nations. These two
cases are so obviously and so essentially distinct, that it occasions no little
surprise that the distinction should have been disregarded: and the surprise is
so much the greater, as it appears that the two cases are actually
distinguished by two separate acts of Congress, passed at the same session, and
comprised in the same publication; the one providing for the case of
"alien enemies;" the other "concerning aliens"
indiscriminately; and consequently extending to aliens of every nation in peace
and amity with the United States. With respect to alien enemies, no doubt has
been intimated as to the federal authority over them; the Constitution having
expressly delegated to Congress the power to declare war against any nation,
and of course to treat it and all its members as enemies. With respect to
aliens who are not enemies, but members of nations in peace and amity with the
United States, the power assumed by the act of Congress is denied to be
constitutional; and it is accordingly against this act, that the protest of the
General Assembly is expressly and exclusively directed.

A third observation is, that were it admitted, as is contended, that the
"act concerning aliens" has for its object not a penal, but a
preventive justice, it would still remain to be proved that it comes
within the constitutional power of the federal legislature; and if within its
power, that the legislature has exercised it in a constitutional manner.

In the administration of preventive justice, the following principles have
been held sacred: that some probable ground of suspicion be exhibited before
some judicial authority; that it be supported by oath or affirmation; that the
party may avoid being thrown into confinement, by finding pledges or sureties
for his legal conduct sufficient in the judgment of some judicial authority;
that he may have the benefit of a writ of habeas corpus, and thus obtain
his release, if wrongfully confined; and that he may at any time be discharged
from his recognizance, or his confinement, and restored to his former-liberty
and rights, on the order of the proper judicial authority, if it shall see
sufficient cause.

All these principles of the only preventive justice known to American
jurisprudence are violated by the alien-act. The ground of suspicion is to be
judged of, not by any judicial authority, but by the executive magistrate
alone; no oath or affirmation is required; if the suspicion be held reasonable
by the President, he may order the suspected alien to depart the territory of
the United States, without the opportunity of avoiding the sentence, by finding
pledges for his future good conduct; as the President may limit the time of
departure as he pleases, the benefit of the writ of habeas corpus may be
suspended with respect to the party, although the Constitution ordains, that it
shall not be suspended, unless when the public safety may require it in case of
rebellion or invasion, neither of which existed at the passage of the act; and
the party being under the sentence of the President, either removed from the
United States, or being punished by imprisonment, or disqualification ever to
become a citizen on conviction of not obeying the order of removal, he cannot
be discharged from the proceedings against him, and restored to the benefits of
his former situation, although the highest judicial authority should see
the most sufficient cause for it.

But, in the last place, it can never be admitted, that the removal of
aliens, authorized by the act, is to be considered, not as punishment for an
offence, but as a measure of precaution and prevention. If the banishment of an
alien from a country into which he has been invited, as the asylum most
auspicious to his happiness; a country where he may have formed the most tender
of connexions, where he may have vested his entire property, and acquired
property of the real and permanent, as well as the movable and temporary kind;
where he enjoys under the laws a greater share of the blessings of personal
security and personal liberty than he can elsewhere hope for, and where he may
have nearly completed his probationary title to citizenship; if, moreover, in
the execution of the sentence against him, he is to be exposed, not only to the
ordinary dangers of the sea, but to the peculiar casualties incident to a
crisis of war, and of unusual licentiousness on that element, and possibly to
vindictive purposes which his emigration itself may have provoked; if a
banishment of this sort be not a punishment, and among the severest of
punishments, it will be difficult to imagine a doom to which the name can be
applied. And if it be a punishment, it will remain to be inquired, whether it
can be constitutionally inflicted, on mere suspicion, by the single will of the
executive magistrate, on persons convicted of no personal offence against the
laws of the land, nor involved in any offence against the law. of nations,
charged on the foreign state of which they are members.

One argument offered in justification of this power exercised over aliens
is, that the admission of them into the country being of favour, not of right,
the favour is at all times revocable.

To this argument it might be answered, that allowing the truth of the
inference, it would be no proof of what is required. A question would still
occur, whether the Constitution had vested the discretionary power of admitting
aliens in the federal government, or in the state governments.

But it cannot be a true inference, that because the admission of an alien is
a favour, the favour may be revoked at pleasure. A grant of land to an
individual may be of favour, not of right; but the moment the grant is made,
the favour becomes a right, and must be forfeited before it can be taken away.
To pardon a malefactor may be favour, but the pardon is not, on that account,
the less irrevocable. To admit an alien to naturalization is as much a favour,
as to admit him to reside in the country; yet it cannot be pretended, that a
person naturalized can be deprived of the benefit, any more than a native
citizen can be disfranchised.9

Again, it is said, that aliens not being parties to the Constitution, the
rights and privileges which it secures cannot be at all claimed by them.

To this reasoning, also, it might be answered, that although aliens are not
parties to the Constitution, it does not follow that the Constitution has
vested in Congress an absolute power over them. The parties to the Constitution
may have granted, or retained, or modified the power over aliens, without
regard to that particular consideration.

But a more direct reply is, that it does not follow, because aliens are not
parties to the Constitution, as citizens are parties to it, that whilst they
actually conform to it, they have no right to its protection. Aliens are not
more parties to the laws, than they are parties to the Constitution; yet, it
will not be disputed, that as they owe, on one hand, a temporary obedience,
they are entitled in return to their protection and advantage.

If aliens had no rights under the Constitution, they might not only be
banished, but even capitally punished, without a jury or the other incidents to
a fair trial. But so far has a contrary principle been carried, in every part
of the United States, that except on charges of treason, an alien has, besides
all the common privileges, the special one of being tried by a jury, of which
one-half may be also aliens.

It is said, further, that by the law and practice of nations, aliens may be
removed at discretion, for offences against the law of nations; that Congress
are authorized to define and punish such offences; and that to be dangerous to
the peace of society is, in aliens, one of those offences.

The distinction between alien enemies and alien friends, is a clear and
conclusive answer to this argument. Alien enemies are under the law of nations,
and liable to be punished for offences against it. Alien friends, except in the
single case of public ministers, are under the municipal law, and must be tried
and punished according to that law only.10

This argument also, by referring the alien-act to the power of Congress to
define and punish offences against the law of nations, yields the point
that the act is of a penal, not merely of a preventive operation. It
must, in truth, be so considered. And if it be a penal act, the punishment it
inflicts, must be justified by some offence that deserves it.

Offences for which aliens, within the jurisdiction of a country, are
punishable, are first, offences committed by the nation of which they make a
part, and in whose offences they are involved: Secondly, offences committed by
themselves alone, without any charge against the nation to which they belong.
The first is the case of alien enemies; the second, the case of alien friends.
In the first case, the offending nation can no otherwise be punished than by
war, one of the laws of which authorizes the expulsion of such of its members,
as may be found within the country, against which the offence has been
committed. In the second case, the offence being committed by the individual,
not by his nation, and against the municipal law, not against the law of
nations, the individual only, and not the nation, is punishable; and the
punishment must be conducted according to the municipal law, not according to
the law of nations. Under this view of the subject, the act of Congress, for
the removal of alien enemies, being conformable to the law of nations, is
justified by the Constitution: and the "act," for the removal of
alien friends, being repugnant to the constitutional principles of municipal
law, is unjustifiable.

Nor is the act of Congress, for the removal of alien friends, more agreeable
to the general practice of nations, than it is within the purview of the law of
nations. The general practice of nations, distinguishes between alien friends
and alien enemies. The latter it has proceeded against, according to the law of
nations, by expelling them as enemies.11
The former it has considered as under a local and temporary allegiance, and
entitled to a correspondent protection. If contrary instances are to be found
in barbarous countries, under undefined prerogatives, or amid revolutionary
dangers, they will not be deemed fit precedents for the government of the
United States, even if not beyond its constitutional authority.

It is said, that Congress may grant letters of marque and reprisal; that
reprisals may be made on persons, as well as property; and that the removal of
aliens may be considered as the exercise in an inferior degree, of the general
power of reprisal on persons.

Without entering minutely into a question that does not seem to require it,
it may be remarked, that reprisal is a seizure of foreign persons or property,
with a view to obtain that justice for injuries done by one state or its
members, to another state or its members, for which, a refusal of the aggressor
requires such a resort to force under the law of nations. It must be considered
as an abuse of words to call the removal of persons from a country, a seizure
or reprisal on them: nor is the distinction to be overlooked between reprisals
on persons within the country and under the faith of its laws, and on persons
out of the country.12

But, laying aside these considerations, it is evidently impossible to bring
the alien-act within the power of granting reprisals; since it does not allege
or imply any injury received from any particular nation, for which this
proceeding against its members was intended as a reparation. The proceeding is
authorized against aliens of every nation; of nations charged neither
with any similar proceeding against American citizens, nor with any injuries
for which justice might be sought, in the mode prescribed by the act. Were it
true, therefore, that good causes existed for reprisals against one or more
foreign nations, and that neither persons nor property of its members, under
the faith of our laws, could plead an exemption, the operation of the act ought
to have been limited to the aliens among us, belonging to such nations. To
license reprisals against all nations, for aggressions charged on one only,
would be a measure as contrary to every principle of justice and public law, as
to a wise policy, and the universal practice of nations.

It is said, that the right of removing aliens is an incident to the power of
war, vested in Congress by the Constitution.

This is a former argument in a new shape only; and is answered by repeating,
that the removal of alien enemies is an incident to the power of war; that the
removal of alien friends, is not an incident to the power of war.

It is said, that Congress are by the Constitution to protect each state
against invasion; and that the means of preventing invasion are included
in the power of protection against it.

The power of war in general, having been before granted by the Constitution,
this clause must either be a mere specification for greater caution and
certainty, of which there are other examples in the instrument, or be the
injunction of a duty, superadded to a grant of the power. Under either
explanation, it cannot enlarge the powers of Congress on the subject. The power
and the duty to protect each state against an invading enemy, would be the same
Under the general power, if this regard to greater caution had been omitted.

Invasion is an operation of war. To protect against invasion is an exercise
of the power of war. A power, therefore, not incident to war, cannot be
incident to a particular modification of war. And as the removal of alien
friends, has appeared to be no incident to a general state of war, it cannot be
incident to a partial state, or a particular modification of war.

Nor can it ever be granted, that a power to act on a case when it actually
occurs, includes a power over all the means that may tend to prevent the
occurrence of the case. Such a latitude of construction would render unavailing
every practicable definition of particular and limited powers. Under the idea
of preventing war in general, as well as invasion in particular, not only an
indiscriminate removal of all aliens might be enforced, but a thousand other
things still more remote from the operations and precautions appurtenant to
war, might take place. A bigoted or tyrannical nation might threaten us with
war, unless certain religious or political regulations were adopted by us; yet
it never could be inferred, if the regulations which would prevent war, were
such as Congress had otherwise no power to make, that the power to make them
would grow out of the purpose they were to answer. Congress have power to
suppress insurrections, yet it would not be allowed to follow, that they might
employ all the means tending to prevent them; of which a system of moral
instruction for the ignorant, and of provident support for the poor, might be
regarded as among the most efficacious.

One argument for the power of the general government to remove aliens, would
have been passed in silence, if it had appeared under any authority inferior to
that of a report, made during the last session of Congress, to the House of
Representatives by a committee, and approved by the House. The doctrine on
which this argument is founded, is of so new and so extraordinary a character,
and strikes so radically at the political system of America, that it is proper
to state it in the very words of the report.

"The act [concerning aliens] is said to be unconstitutional, because to
remove aliens is a direct breach of the Constitution, which provides, by the
9th section of the 1st article, that the migration or importation of such
persons as any of the states shall think proper to admit, shall not be
prohibited by the Congress, prior to the year 1808."

Among the answers given to this objection to the constitutionality of the
act, the following very remarkable one is extracted:

"Thirdly, that as the Constitution has given to the states no
power to remove aliens, during the period of the limitation under
consideration, in the mean time, on the construction assumed, there would be no
authority in the country, empowered to send away dangerous aliens, which cannot
be admitted."13

The reasoning here used, would not in any view, be conclusive; because there
are powers exercised by most other governments, which in the United States are
withheld by the people, both from the general government, and from the state
governments. Of this sort are many of the powers prohibited by the declarations
of right prefixed to the constitutions, or by the clauses in the constitutions,
in the nature of such declarations. Nay, so far is the political system of the
United States distinguishable from that of other countries, by the caution with
which powers are delegated and defined, that in one very important case, even
of commercial regulations and revenue, the power is absolutely locked up
against the hands of both governments. A tax on exports can be laid by no
constitutional authority whatever. Under a system thus peculiarly guarded,
there could surely be no absurdity in supposing, that alien friends, who if
guilty of treasonable machinations may be punished, or if suspected on probable
grounds, may be secured by pledges or imprisonment, in like manner with
permanent citizens, were never meant to be subjected to banishment by any
arbitrary and unusual process, either under the one government or the other.

But, it is not the inconclusiveness of the general reasoning in this
passage, which chiefly calls the attention to it. It is the principle assumed
by it, that the powers held by the states, are given to them by the
Constitution of the United States; and the inference from this principle, that
the powers supposed to be necessary which are not so given to state
governments, must reside in the government of the United States.

The respect, which is felt for every portion of the constituted authorities,
forbids some of the reflections which this singular paragraph might excite; and
they are the more readily suppressed, as it may be presumed, with justice
perhaps, as well as candour, that inadvertence may have had its share in the
error. It would be an unjustifiable delicacy, nevertheless, to pass by so
portentous a claim, proceeding from so high an authority, without a monitory
notice of the fatal tendencies with which it would be pregnant.

Lastly, it is said, that a law on the same subject with the alien-act,
passed by this state originally in 1785, and re-enacted in 1792, is a proof
that a summary removal of suspected aliens, was not heretofore regarded by the
Virginia Legislature, as liable to the objections now urged against such a
measure.

This charge against Virginia vanishes before the simple remark, that the law
of Virginia relates to "suspicious persons being the subjects of any
foreign power or state, who shall have made a declaration of war, or
actually commenced hostilities, or from whom the President shall
apprehend hostile designs;" whereas the act of Congress relates to
aliens, being the subjects of foreign powers and states, who have neither
declared war, nor commenced hostilities, nor from whom hostile designs are
apprehended.

2. It is next affirmed of the alien act, that it unites legislative,
judicial, and executive powers in the hands of the President.

However difficult it may be to mark, in every case, with clearness and
certainty, the line which divides legislative power, from the other departments
of power, all will agree, that the powers referred to these departments may be
so general and undefined, as to be of a legislative, not of an executive or
judicial nature; and may for that reason be unconstitutional. Details to a
certain degree, are essential to the nature and character of a law; and on
criminal subjects, it is proper, that details should leave as little as
possible to the discretion of those who are to apply and to execute the law. If
nothing more were required, in exercising a legislative trust, than a general
conveyance of authority, without laying down any precise rules, by which the
authority conveyed should be carried into effect; it would follow, that the
whole power of legislation might be transferred by the legislature from itself,
and proclamations might become substitutes for laws. A delegation of power in
this latitude, would not be denied to be a union of the different powers.

To determine, then, whether the appropriate powers of the distinct
departments are united by the act authorizing the executive to remove aliens,
it must be inquired whether it contains such details, definitions and rules, as
appertain to the true character of a law; especially, a law by which personal
liberty is invaded, property deprived of its value to the owner, and life
itself indirectly exposed to danger.

The alien-act declares, "that it shall be lawful for the President to
order all such aliens as he shall judge dangerous to the peace and
safety of the United States, or shall have reasonable ground to suspect,
are concerned in any treasonable, or secret machinations, against the
government thereof, to depart," &c.

Could a power be well given in terms less definite, less particular, and
less precise? To be dangerous to the public safety; to be suspected
of secret machinations against the government: these can never be mistaken
for legal rules or certain definitions. They leave everything to the President.
His will is the law.

But, it is not a legislative power only, that is given to the President. He
is to stand in the place of the judiciary also. His suspicion is the only
evidence which is to convict: his order, the only judgment which is to be
executed.

Thus, it is the President whose will is to designate the offensive conduct;
it is his will that is to ascertain the individuals on whom it is charged; and
it is his will, that is to cause the sentence to be executed. It is rightly
affirmed, therefore, that the act unites legislative and judicial powers to
those of the executive.

3. It is affirmed, that this union of power subverts the general principles
of free government.

It has become an axiom in the science of government, that a separation of
the legislative, executive, and judicial departments, is necessary to the
preservation of public liberty.14 Nowhere
has this axiom been better understood in theory, or more carefully pursued in
practice, than in the United States.

4. It is affirmed that such a union of powers subverts the particular
organization and positive provisions of the Federal Constitution.

According to the particular organization of the Constitution, its
legislative powers are vested in the Congress, its executive powers in the
President, and its judicial powers in a supreme and inferior tribunals. The
union of any two of these powers, and still more of all three, in any one of
these departments, as has been shown to be done by the alien-act, must
consequently subvert the constitutional organization of them.

That positive provisions, in the Constitution, securing to individuals the
benefits of fair trial, are also violated by the union of powers in the
alien-act, necessarily results from the two facts, that the act relates to
alien friends, and that alien friends being under the municipal law only, are
entitled to its protection.

II. The second object against which the resolution protests, is the
sedition-act.

Of this act it is affirmed, 1. That it exercises in like manner a power not
delegated by the Constitution. 2. That the power, on the contrary, is expressly
and positively forbidden by one of the amendments to the Constitution. 3. That
this is a power, which more than any other ought to produce universal alarm;
because it is levelled against that right of freely examining public characters
and measures, and of free communication thereon, which has ever been justly
deemed the only effectual guardian of every other right.

1. That it exercises a power not delegated by the Constitution.

Here again, it will be proper to recollect, that the Federal Government
being composed of powers specifically granted, with a reservation of all others
to the states or to the people, the positive authority under which the
sedition-act could be passed must be produced by those who assert its
constitutionality. In what part of the Constitution, then, is this authority to
be found?

Several attempts have been made to answer this question, which will be
examined in their order. The committee will begin with one, which has filled
them with equal astonishment and apprehension; and which, they cannot but
persuade themselves, must have the same effect on all, who will consider it
with coolness and impartiality, and with a reverence for our Constitution, in
the true character in which it issued from the sovereign authority of the
people. The committee refer to the doctrine lately advanced as a sanction to
the sedition-act, "that the common or unwritten law," a law of vast
extent and complexity, and embracing almost every possible subject of
legislation, both civil and criminal, makes a part of the law of these states,
in their united and national capacity.15

The novelty and, in the judgment of the committee, the extravagance of this
pretension, would have consigned it to the silence in which they have passed by
other arguments, which an extraordinary zeal for the act has drawn into the
discussion: But the auspices under which this innovation presents itself, have
constrained the committee to bestow on it an attention, which other
considerations might have forbidden.

In executing the task, it may be of use to look back to the colonial state
of this country, prior to the Revolution; to trace the effects of the
Revolution which converted the colonies into independent states; to inquire
into the import of the articles of confederation, the first instrument by which
the union of the states was regularly established; and finally, to consult the
Constitution of 1788, which is the oracle that must decide the important
question.

In the state, prior to the Revolution, it is certain that the common law,
under different limitations, made a part of the colonial codes. But whether it
be understood that the original colonists brought the law with them, or made it
their law by adoption; it is equally certain, that it was the separate law of
each colony within its respective limits, and wag unknown to them, as a law
pervading and operating through the whole, as one society.

It could not possibly be otherwise. The common law was not the same in any
two of the colonies; in some, the modifications were materially and extensively
different. There was no common legislature, by which a common will could be
expressed in the form of a law; nor any common magistracy, by which such a law
could be carried into practice. The will of each colony, alone and separately,
had its organs for these purposes.

This stage of our political history furnishes no foothold for the patrons of
this new doctrine.

Did then the principle or operation of the great event which made the
colonies independent states, imply or introduce the common law as a law of the
Union?

The fundamental principle of the Revolution was, that the colonies were
co-ordinate members with each other, and with Great Britain, of an empire,
united by a common executive sovereign, but not united by any common
legislative sovereign. The legislative power was maintained to be as complete
in each American parliament, as in the British parliament. And the royal
prerogative was in force in each colony, by virtue of its acknowledging the
king for its executive magistrate, as it was in Great Britain, by virtue of a
like acknowledgment there. A denial of these principles by Great Britain, and
the assertion of them by America, produced the Revolution.

There was a time, indeed, when an exception to the legislative separation of
the several component and coequal parts of the empire obtained a degree of
acquiescence. The British parliament was allowed to regulate the trade with
foreign nations, and between the different parts of the empire. This was,
however, mere practice without right, and contrary to the true theory of the
Constitution. The conveniency of some regulations, in both those cases, was
apparent; and as there was no legislature with power over the whole, nor any
constitutional pre-eminence among the legislatures of the several parts, it was
natural for the legislature of that particular part which was the eldest and
the largest, to assume this function, and for the others to acquiesce in it.
This tacit arrangement was the less criticised, as the regulations established
by the British parliament operated in favour of that part of the empire which
seemed to bear the principal share of the public burdens, and were regarded as
an indemnification of its advances for the other parts. As long as this
regulating power was confined to the two objects of conveniency and equity, it
was not complained of, nor much inquired into. But, no sooner was it perverted
to the selfish views of the party assuming it, than the injured parties began
to feel and to reflect; and the moment the claim to a direct and indefinite
power was ingrafted on the precedent of the regulating power, the whole charm
was dissolved, and every eye opened to the usurpation. The assertion by Great
Britain of a power to make laws for the other members of the empire in all
cases whatsoever, ended in the discovery that she had a right to make laws
for them in no cases whatsoever.

Such being the ground of our Revolution, no support nor colour can be drawn
from it, for the doctrine that the common law is binding on these states as one
society. The doctrine, on the contrary, is evidently repugnant to the
fundamental principle of the Revolution.

The articles of confederation are the next source of information on this
subject.

In the interval between the commencement of the Revolution and the final
ratification of these articles, the nature and extent of the Union was
determined by the circumstances of the crisis, rather than by any accurate
delineation of the general authority. It will not be alleged, that the
"common law" could have had any legitimate birth as a law of the
United States during that state of things. If it came, as such, into existence
at all, the charter of confederation must have been its parent.

Here again, however, its pretensions are absolutely destitute of foundation.
This instrument does not contain a sentence or syllable that can be tortured
into a countenance of the idea, that the parties to it were, with respect to
the objects of the common law, to form one community. No such law is named or
implied, or alluded to as being in force, or as brought into force by that
compact. No provision is made by which such a law could be carried into
operation; whilst, on the other hand, every such inference or pretext is
absolutely precluded by Article 2d, which declares, "that each state
retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right, which is not by this confederation expressly delegated
to the United States, in Congress assembled."

Thus far it appears that not a vestige of this extraordinary doctrine can be
found in the origin or progress of American institutions. The evidence against
it has, on the contrary, grown stronger at every step, till it has amounted to
a formal and positive exclusion, by written articles of compact among the
parties concerned.

Is this exclusion revoked, and the common law introduced as a national law,
by the present Constitution of the United States? This is the final question to
be examined.

It is readily admitted, that particular parts of the common law may have a
sanction from the Constitution, so far as they are necessarily comprehended in
the technical phrases which express the powers delegated to the government; and
so far also, as such other parts may be adopted by Congress as necessary and
proper for carrying into execution the powers expressly delegated. But, the
question does not relate to either of these portions of the common law. It
relates to the common law beyond these limitations.

The only part of the Constitution which seems to have been relied on in this
case is the 2d Sect. of Art. III. "The judicial power shall extend to all
cases in law and equity, arising under this Constitution, the
laws of the United States, and treaties made or which shall be made under their
authority."

It has been asked what cases, distinct from those arising under the laws and
treaties of the United States, can arise under the Constitution, other than
those arising under the common law; and it is inferred, that the common law is
accordingly adopted or recognised by the Constitution.

Never, perhaps, was so broad a construction applied to a text so clearly
unsusceptible of it. If any colour for the inference could be found, it must be
in the impossibility of finding any other cases in law and equity, within the
provision of the Constitution, to satisfy the expression; and rather than
resort to a construction affecting so essentially the whole character of the
government, it would perhaps be more rational to consider the expression as a
mere pleonasm, or inadvertence. But, it is not necessary to decide on such a
dilemma. The expression is fully satisfied, and its accuracy justified, by two
descriptions of cases, to which the judicial authority is extended, and neither
of which implies that the common law is the law of the United States. One of
these descriptions comprehends the cases growing out of the restrictions on the
legislative power of the states. For example, it is provided that "no
state shall emit bills of credit," or "make anything but gold and
silver coin a tender in payment of debts." Should this prohibition be
violated, and a suit between citizens of the same state be the
consequence, this would be a case arising under the Constitution, before the
judicial power of the United States. A second description comprehends suits
between citizens and foreigners, or citizens of different states, to be decided
according to the state or foreign laws; but submitted by the Constitution to
the judicial power of the United States; the judicial power being, in several
instances, extended beyond the legislative power of the United States.

To this explanation of the text, the following observations may be added:

The expression, "cases in law and equity," is manifestly confined
to cases of a civil nature; and would exclude cases of criminal jurisdiction.
Criminal cases in law and equity would be a language unknown to the
law.16

The succeeding paragraph of the same section is in harmony with this
construction. It is in these words: "In all cases affecting ambassadors,
other public ministers, and consuls, and those in which a state shall be a
party, the Supreme Court shall have original jurisdiction. In all the
other cases [including cases in law and equity arising under the Constitution]
the Supreme Court shell have appellate jurisdiction both as to law and
fact; with such exceptions, and under such regulations, as Congress
shall make."

This paragraph, by expressly giving an appellate jurisdiction, in
cases of law and equity arising under the Constitution, to fact, as well
as to law, clearly excludes criminal cases, where the trial by jury is secured;
because the fact, in such cases, is not a subject of appeal.17 And, although the appeal is liable to such
exceptions and regulations as Congress may adopt, yet it is not to be
supposed that an exception of all criminal cases could be
contemplated; as well because a discretion in Congress to make or omit the
exception would be improper, as because it would have been unnecessary. The
exception could as easily have been made by the Constitution itself, as
referred to the Congress.

Once more; the amendment last added to the Constitution, deserves attention,
as throwing light on this subject. "The judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States, by
citizens of another state, or by citizens or subjects of any foreign
power." As it will not be pretended that any criminal proceeding could
take place against a state, the terms law or equity, must be
understood as appropriate to civil, in exclusion of criminal
cases.

From these considerations, it is evident, that this part of the
Constitution, even if it could be applied at all to the purpose for which it
has been cited, would not include any cases whatever of a criminal nature; and
consequently, would not authorize the inference from it, that the judicial
authority extends to offences against the common law, as offences
arising under the Constitution.

It is further to be considered, that even if this part of the Constitution
could be strained into an application to every common law case, criminal as
well as civil, it could have no effect in justifying the sedition-act, which is
an exercise of legislative, and not of judicial power: and it is the judicial
power only, of which the extent is defined in this part of the Constitution.

There are two passages in the Constitution, in which a description of the
law of the United States is found. The first is contained in Art. III. sect. 2,
in the words following: "This Constitution, the laws of the United States,
and treaties made, or which shall be made under their authority." The
second is contained in the second paragraph of Art. VI. as follows: "This
Constitution, and the laws of the United States which shall be made in
pursuance thereof, and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land." The
first of these descriptions was meant as a guide to the judges of the United
States; the second, as a guide to the judges in the several states. Both of
them consists of an enumeration, which was evidently meant to be precise and
complete. If the common law had been understood to be a law of the United
States, it is not possible to assign a satisfactory reason why it was not
expressed in the enumeration.

In aid of these objections, the difficulties and confusion inseparable from
a constructive introduction of the common law, would afford powerful reasons
against it.

Is it to be the common law with or without the British statutes?

If without the statutory amendments, the vices of the code would be
insupportable.

If with these amendments, what period is to be fixed for limiting the
British authority over our laws?

Is it to be the date of the eldest or the youngest of the colonies?

Or are the dates to be thrown together, and a medium deduced?

Or is our independence to be taken for the date?

Is, again, regard to be had to the various changes in the common law made by
the local codes of America?

Is regard to be had to such changes, subsequent, as well as prior, to the
establishment of the Constitution?

Is regard to be had to future, as well as past changes?

Is the law to be different in every state, as differently modified by its
code; or are the modifications of any particular state to be applied to all?

And on the latter supposition, which among the state codes would form the
standard?

Questions of this sort might be multiplied with as much ease, as there would
be difficulty in answering them.

The consequences flowing from the proposed construction, furnish other
objections equally conclusive; unless the text were peremptory in its meaning,
and consistent with other parts of the instrument.

These consequences may be in relation to the legislative authority of the
United States; to the executive authority; to the judicial authority; and to
the governments of the several states.

If it be understood, that the common law is established by the Constitution,
it follows that no part of the law can be altered by the legislature; such of
the statutes already passed, as may be repugnant thereto would be nullified;
particularly the "sedition-act" itself, which boasts of being a
melioration of the common law; and the whole code, with all its incongruities,
barbarisms, and bloody maxims, would be inviolably saddled on the good people
of the United States.

Should this consequence be rejected, and the common law be held, like other
laws, liable to revision and alteration, by the authority of Congress, it then
follows, that the authority of Congress is co-extensive with the objects of
common law; that is to say, with every object of legislation: for to every such
object does some branch or other of the common law extend. The authority of
Congress would, therefore, be no longer under the limitations marked out in the
Constitution. They would be authorized to legislate in all cases whatsoever.

In the next place, as the President possesses the executive powers of the
Constitution, and is to see that the laws be faithfully executed, his authority
also must be coextensive with every branch of the common law. The additions
which this would make to his power, though not readily to be estimated, claim
the most serious attention.

This is not all; it will merit the most profound consideration, how far an
indefinite admission of the common law, with a latitude in construing it, equal
to the construction by which it is deduced from the Constitution, might draw
after it the various prerogatives making part of the unwritten law of England.
The English constitution itself is nothing more than a composition of unwritten
laws and maxims.

In the third place, whether the common law be admitted as of legal or of
constitutional obligation, it would confer on the judicial department a
discretion little short of a legislative power.

On the supposition of its having a constitutional obligation, this power in
the judges would be permanent and irremediable by the legislature. On the other
supposition, the power would not expire, until the legislature should have
introduced a full system of statutory provisions. Let it be observed, too, that
besides all the uncertainties above enumerated, and which present an immense
field for judicial discretion, it would remain with the same department to
decide what parts of the common law would, and what would not, be properly
applicable to the circumstances of the United States.

A discretion of this sort has always been lamented as incongruous and
dangerous, even in the colonial and state courts; although so much narrowed by
positive provisions in the local codes on all the principal subjects embraced
by the common law. Under the United States, where so few laws exist on those
subjects, and where so great a lapse of time must happen before the vast chasm
could be supplied, it is manifest that the power of the judges over the law
would, in fact, erect them into legislators; and that, for a long time, it
would be impossible for the citizens to conjecture, either what was, or would
be law.

In the last place, the consequence of admitting the common law as the law of
the United States, on the authority of the individual states, is as obvious as
it would be fatal. As this law relates to every subject of legislation, and
would be paramount to the constitutions and laws of the states, the admission
of it would overwhelm the residuary sovereignty of the states, and by one
constructive operation, new-model the whole political fabric of the country.

From the review thus taken of the situation of the American colonies prior
to their independence; of the effect of this event on their situation; of the
nature and import of the articles of confederation; of the true meaning of the
passage in the existing Constitution from which the common law has been
deduced; of the difficulties and uncertainties incident to the doctrine; and of
its vast consequences in extending the powers of the Federal Government, and in
superseding the authorities of the state governments; the committee feel the
utmost confidence in concluding, that the common law never was, nor, by any
fair construction, ever can be, deemed a law for the American people as one
community; and they indulge the strongest expectation that the same conclusion
will finally be drawn, by all candid and accurate inquirers into the subject.
It is indeed distressing to reflect, that it ever should have been made a
question, whether the Constitution, on the whole face of which is seen so much
labour to enumerate and define the several objects of federal power, could
intend to introduce in the lump, in an indirect manner, and by a forced
construction of a few phrases, the vast and multifarious jurisdiction involved
in the common law; a law filling so many ample volumes; a law overspreading the
entire field of legislation; and a law that would sap the foundation of the
Constitution as a system of limited and specified powers. A severer reproach
could not, in the opinion of the committee, be thrown on the Constitution, on
those who framed, or on those who established it, than such a supposition would
throw on them.

The argument, then, drawn from the common law, on the ground of its being
adopted or recognised by the Constitution, being inapplicable to the
sedition-act, the committee will proceed to examine the other arguments which
have been founded on the Constitution.

They will waste but little time on the attempt to cover the act by the
preamble to the Constitution; it being contrary to every acknowledged rule of
construction, to set up this part of an instrument, in opposition to the plain
meaning expressed in the body of the instrument. A preamble usually contains
the general motives or reasons, for the particular regulations or measures
which follow it; and is always understood to be explained and limited by them.
In the present instance, a contrary interpretation would have the inadmissible
effect, of rendering nugatory or improper every part of the Constitution which
succeeds the preamble.

The paragraph in Art. I. sect. 8, which contains the power to lay and
collect taxes, duties, imposts, and excise; to pay the debts, and provide for
the common defence and general welfare, having been already examined, will also
require no particular attention in this place. It will have been seen that in
its fair and consistent meaning, it cannot enlarge the enumerated powers vested
in Congress.

The part of the Constitution which seems most to be recurred to, in defence
of the "sedition-act," is the last clause of the above section,
empowering Congress "to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers vested
by this Constitution in the government of the United Slates, or in any
department or officer thereof."

The plain import of this clause is, that Congress shall have all the
incidental or instrumental powers necessary and proper for carrying into
execution all the express powers; whether they be vested in the government of
the United States, more collectively, or in the several departments or officers
thereof. It is not a grant of new powers to Congress, but merely a declaration,
for the removal of all uncertainty, that the means of carrying into execution,
those otherwise granted, are included in the grant.

Whenever, therefore, a question arises concerning the constitutionality of a
particular power, the first question is, whether the power be expressed in the
Constitution. If it be, the question is decided. If it be not expressed, the
next inquiry must be, whether it is properly an incident to an express power,
and necessary to its execution. If it be, it may be exercised by Congress. If
it be not. Congress cannot exercise it.

Let the question be asked, then, whether the power over the press, exercised
in the "sedition-act," be found among the powers expressly vested in
the Congress? This is not pretended.

Is there any express power, for executing which it is a necessary and proper
power?

The power which has been selected, as least remote, in answer to this
question, is that of "suppressing insurrections;" which is said to
imply a power to prevent insurrections, by punishing whatever may
lead or tend to them. But, it surely cannot, with the least
plausibility, be said, that a regulation of the press, and a punishment of
libels, are exercises of a power to suppress insurrections. The most that could
be said, would be, that the punishment of libels, if it had the tendency
ascribed to it, might prevent the occasion of passing or executing laws
necessary and proper for the suppression of insurrections.

Has the Federal Government no power, then, to prevent as well as to punish
resistance to the laws?

They have the power, which the Constitution deemed most proper, in their
hands for the purpose. The Congress has power before it happens, to pass laws
for punishing it; and the executive and judiciary have power to enforce those
laws when it does happen.

It must be recollected by many, and could be shown to the satisfaction of
all, that the construction here put on the terms "necessary and
proper," is precisely the construction which prevailed during the
discussions and ratifications of the Constitution. It may be added, and cannot
too often be repeated, that it is a construction absolutely necessary to
maintain their consistency with the peculiar character of the government, as
possessed of particular and defined powers only; not of the general and
indefinite powers vested in ordinary governments. For, if the power to
suppress insurrection, includes a power to punish libels; or if
the power to punish, includes a power to prevent, by all the
means that may have that tendency; such is the relation and influence
among the most remote subjects of legislation, that a power over a very few,
would carry with it a power over all. And it must be wholly immaterial, whether
unlimited powers be exercised under the name of unlimited powers, or be
exercised under the name of unlimited means of carrying into execution limited
powers.

This branch of the subject will be closed with a reflection which must have
weight with all; but more especially with those who place peculiar reliance on
the judicial exposition of the Constitution, as the bulwark provided against
undue extensions of the legislative power. If it be understood that the powers
implied in the specified powers, have an immediate and appropriate relation to
them, as means, necessary and proper for carrying them into execution,
questions on the constitutionality of laws passed for this purpose, will be of
a nature sufficiently precise and determinate for judicial cognizance and
control! If, on the other hand, Congress are not limited in the choice of means
by any such appropriate relation of them to the specified powers; but may
employ all such means as they may deem fitted to prevent, as well as to
punish, crimes subjected to their authority; such as may have a
tendency only to promote an object for which they are authorized
to provide; every one must perceive, that questions relating to means of this
sort, must be questions of mere policy and expediency, on which legislative
discretion alone can decide, and from which the judicial interposition and
control are completely excluded.

2. The next point which the resolution requires to be proved, is, that the
power over the press exercised by the sedition-act, is positively forbidden by
one of the amendments to the Constitution.

The amendment stands in these words — "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech or of the press; or the
right of the people peaceably to assemble, and to petition the government for a
redress of grievances."

In the attempts to vindicate the "sedition-act," it has been
contended, 1. That the "freedom of the press" is to be determined by
the meaning of these terms in the common law. 2. That the article supposes the
power over the press to be in Congress, and prohibits them only from
abridging the freedom allowed to it by the common law.

Although it will be shown, in examining the second of these positions, that
the amendment is a denial to Congress of all power over the press, it may not
be useless to make the following observations on the first of them.

It is deemed to be a sound opinion, that the sedition-act, in its definition
of some of the crimes created, is an abridgment of the freedom of publication,
recognised by principles of the common law in England.

The freedom of the press under the common law; is, in the defences of the
sedition-act, made to consist in an exemption from all previous
restraint on printed publications, by persons authorized to inspect and
prohibit them. It appears to the committee, that this idea of the freedom of
the press, can never be admitted to be the American idea of it: since a law
inflicting penalties on printed publications, would have a similar effect with
a law authorizing a previous restraint on them. It would seem a mockery to say,
that no law should be passed, preventing publications from being made, but that
laws might be passed for punishing them in case they should be made.

The essential difference between the British government, and the American
constitutions, will place this subject in the clearest light.

In the British government, the danger of encroachments on the rights of the
people, is understood to be confined to the executive magistrate. The
representatives of the people in the legislature, are not only exempt
themselves, from distrust, but are considered as sufficient guardians of the
rights of their constituents against the danger from the executive. Hence it is
a principle, that the parliament is unlimited in its power; or, in their own
language, is omnipotent. Hence, too, all the ramparts for protecting the rights
of the people, such as their magna charta, their bill of rights, &c., are
not reared against the parliament, but against the royal prerogative. They are
merely legislative precautions against executive usurpations. Under such a
government as this, an exemption of the press from previous restraint by
licensers appointed by the king, is all the freedom that can be secured to it.

In the United States, the case is altogether different. The people, not the
government, possess the absolute sovereignty. The legislature, no less than the
executive, is under limitations of power. Encroachments are regarded as
possible from the one, as well as from the other. Hence, in the United States,
the great and essential rights of the people are secured against legislative,
as well as against executive ambition. They are secured, not by laws paramount
to prerogative, but by constitutions paramount to laws. This security of the
freedom of the press requires, that it should be exempt, not only from previous
restraint by the executive, as in Great Britain, but from legislative restraint
also; and this exemption, to be effectual, must be an exemption not only from
the previous inspection of licensers, but from the subsequent penalty of laws.

The state of the press, therefore, under the common law, cannot, in this
point of view, be the standard of its freedom in the United States.

But there is another view, under which it may be necessary to consider this
subject. It may be alleged, that although the security for the freedom of the
press, be different in Great Britain and in this country; being a legal
security only in the former, and a constitutional security in the latter; and
although there may be a further difference, in an extension of the freedom of
the press here, beyond an exemption from previous restraint, to an exemption
from subsequent penalties also; yet that the actual legal freedom of the press,
under the common law, must determine the degree of freedom which is meant by
the terms, and which is constitutionally secured against both previous and
subsequent restraints.

The committee are not unaware of the difficulty of all general questions,
which may turn on the proper boundary between the liberty and licentiousness of
the press. They will leave it therefore for consideration only, how far the
difference between the nature of the British government, and the nature of the
American governments, and the practice under the latter, may show the degree of
rigour in the former to be inapplicable to, and not obligatory in the latter.

The nature of governments elective, limited, and responsible, in all their
branches, may well be supposed to require a greater freedom of animadversion
than might be tolerated by the genius of such a government as that of Great
Britain. In the latter, it is a maxim, that the king, an hereditary, not a
responsible magistrate, can do no wrong; and that the legislature, which in
two-thirds of its composition, is also hereditary, not responsible, can do what
it pleases. In the United States, the executive magistrates are not held to be
infallible, nor the legislatures to be omnipotent; and both being elective, are
both responsible. Is it not natural and necessary, under such different
circumstances, that a different degree of freedom, in the use of the press,
should be contemplated?

Is not such an inference favoured by what is observable in Great Britain
itself? Notwithstanding the general doctrine of the common law, on the subject
of the press, and the occasional punishment of those who use it with a freedom
offensive to the government; it is well known, that with respect to the
responsible members of the government, where the reasons operating here, become
applicable there, the freedom exercised by the press, and protected by the
public opinion, far exceeds the limits prescribed by the ordinary rules of law.
The ministry, who are responsible to impeachment, are at all times animadverted
on, by the press, with peculiar freedom; and during the elections for the House
of Commons, the other responsible part of the government, the press is employed
with as little reserve towards the candidates.

The practice in America must be entitled to much more respect. In every
state, probably, in the Union, the press has exerted a freedom in canvassing
the merits and measures of public men, of every description, which has not been
confined to the strict limits of the common law. On this footing, the freedom
of the press has stood; on this footing it yet stands. And it will not be a
breach, either of truth or of candour, to say, that no persons or presses are
in the habit of more unrestrained animadversions on the proceedings and
functionaries of the state governments, than the persons and presses most
zealous in vindicating the act of Congress for punishing similar animadversions
on the government of the United States.

The last remark will not be understood as claiming for the state governments
an immunity greater than they have heretofore enjoyed. Some degree of abuse is
inseparable from the proper use of everything; and in no instance is this more
true, than in that of the press. It has accordingly been decided by the
practice of the states, that it is better to leave a few of its noxious
branches to their luxuriant growth, than by pruning them away, to injure the
vigour of those yielding the proper fruits. And can the wisdom of this policy
be doubted by any who reflect, that to the press alone, chequered as it is with
abuses, the world is indebted for all the triumphs which have been gained by
reason and humanity, over error and oppression; who reflect, that to the same
beneficent source, the United States owe much of the lights which conducted
them to the rank of a free and independent nation; and which have improved
their political system into a shape so auspicious to their happiness. Had
"sedition-acts," forbidding every publication that might bring the
constituted agents into contempt or disrepute, or that might excite the hatred
of the people against the authors of unjust or pernicious measures, been
uniformly enforced against the press, might not the United States have been
languishing at this day, under the infirmities of a sickly confederation? Might
they not possibly be miserable colonies, groaning under a foreign yoke?

To these observations, one fact will be added, which demonstrates that the
common law cannot be admitted as the universal expositor of American
terms, which may be the same with those contained in that law. The freedom of
conscience, and of religion, are found in the same instruments which assert the
freedom of the press. It will never be admitted, that the meaning of the
former, in the common law of England, is to limit their meaning in the United
States.

Whatever weight may be allowed to these considerations, the committee do
not, however, by any means intend to rest the question on them. They contend
that the article of amendment, instead of supposing in Congress a power that
might be exercised over the press, provided its freedom was not abridged, was
meant as a positive denial to Congress, of any power whatever on the subject.

To demonstrate that this was the true object of the article, it will be
sufficient to recall the circumstances which led to it, and to refer to the
explanation accompanying the article.

When the Constitution was under the discussions which preceded its
ratification, it is well known, that great apprehensions were expressed by
many, lest the omission of some positive exception from the powers delegated,
of certain rights, and of the freedom of the press particularly, might expose
them to danger of being drawn by construction within some of the powers vested
in Congress; more especially of the power to make all laws necessary and proper
for carrying their other powers into execution. In reply to this objection, it
was invariably urged to be a fundamental and characteristic principle of the
Constitution, that all powers not given by it, were reserved; that no powers
were given beyond those enumerated in the Constitution, and such as were fairly
incident to them; that the power over the rights in question, and particularly
over the press, was neither among the enumerated powers, nor incident to any of
them; and consequently that an exercise of any such power, would be a manifest
usurpation. It is painful to remark, how much the arguments now employed in
behalf of the sedition-act, are at variance with the reasoning which then
justified the Constitution, and invited its ratification.

From this posture of the subject, resulted the interesting question in so
many of the conventions, whether the doubts and dangers ascribed to the
Constitution, should be removed by any amendments previous to the ratification,
or be postponed, in confidence that as far as they might be proper, they would
be introduced in the form provided by the Constitution. The latter course was
adopted; and in most of the states, the ratifications were followed by
propositions and instructions for rendering the Constitution more explicit, and
more safe to the rights not meant to be delegated by it. Among those rights,
the freedom of the press, in most instances, is particularly and emphatically
mentioned. The firm and very pointed manner, in which it is asserted in the
proceedings of the convention of this state, will be hereafter seen.

In pursuance of the wishes thus expressed, the first Congress that assembled
under the Constitution, proposed certain amendments which have since, by the
necessary ratifications, been made a part of it; among which amendments, is the
article containing, among other prohibitions on the Congress, an express
declaration that they should make no law abridging the freedom of the press.

Without tracing farther the evidence on this subject, it would seem scarcely
possible to doubt, that no power whatever over the press was supposed to be
delegated by the Constitution, as it originally stood; and that the amendment
was intended as a positive and absolute reservation of it.

But the evidence is still stronger. The proposition of amendment is made by
Congress, is introduced in the following terms: "The conventions of a
number of the states having at the time of their adopting the Constitution
expressed a desire, in order to prevent misconstructions or abuse of its
powers, that further declaratory and restrictive clauses should be added; and
as extending the ground of public confidence in the government, will best
ensure the beneficent ends of its institutions."

Here is the most satisfactory and authentic proof, that the several
amendments proposed, were to be considered as either declaratory or
restrictive; and whether the one or the other, as corresponding with the desire
expressed by a number of the states, and as extending the ground of public
confidence in the government.

Under any other construction of the amendment relating to the press, than
that it declared the press to be wholly exempt from the power of Congress, the
amendment could neither be said to correspond with the desire expressed by a
number of the states, nor be calculated to extend the ground of public
confidence in the government.

Nay more; the construction employed to justify the "sedition-act,"
would exhibit a phenomenon, without a parallel in the political world. It would
exhibit a number of respectable states, as denying first that any power over
the press was delegated by the Constitution; as proposing next, that an
amendment to it, should explicitly declare that no such power was delegated;
and finally, as concurring in an amendment actually recognising or delegating
such a power.

Is then the federal government, it will be asked, destitute of every
authority for restraining the licentiousness of the press, and for shielding
itself against the libellous attacks which may be made on those who administer
it?

The Constitution alone can answer this question. If no such power be
expressly delegated, and it be not both necessary and proper to carry into
execution an express power; above all, if it be expressly forbidden by a
declaratory amendment to the Constitution, the answer must be, that the federal
government is destitute of all such authority.

And might it not be asked in turn, whether it is not more probable, under
all the circumstances which have been reviewed, that the authority should be
withheld by the Constitution, than that it should be left to a vague and
violent construction; whilst so much pains were bestowed in enumerating other
powers, and so many less important powers are included in the enumeration?

Might it not be likewise asked, whether the anxious circumspection which
dictated so many peculiar limitations on the general authority, would be
unlikely to exempt the press altogether from that authority? The peculiar
magnitude of some of the powers necessarily committed to the federal
government; the peculiar duration required for the functions of some of its
departments; the peculiar distance of the seat of its proceedings from the
great body of its constituents; and the peculiar difficulty of circulating an
adequate knowledge of them through any other channel; will not these
considerations, some or other of which produced other exceptions from the
powers of ordinary governments, all together, account for the policy of binding
the hand of the federal government, from touching the channel which alone can
give efficacy to its responsibility to its constituents; and of leaving those
who administer it, to a remedy for their their injured reputations, under the
same laws, and in the same tribunals, which protect their lives, their
liberties, and their properties?

But the question does not turn either on the wisdom of the Constitution, or
on the policy which gave rise to its particular organization. It turns on the
actual meaning of the instrument; by which it has appeared, that a power over
the press is clearly excluded, from the number of powers delegated to the
federal government.

3. And in the opinion of the committee, well may it be said, as the
resolution concludes with saying, that the unconstitutional power exercised
over the press by the "sedition-act," ought "more than any
other, to produce universal alarm; because it is levelled against that right of
freely examining public characters and measures, and of free communication
among the people thereon, which has ever been justly deemed the only effectual
guardian of every other right."

Without scrutinizing minutely into all the provisions of the
"sedition-act," it will be sufficient to cite so much of section 2,
as follows: "And be it further enacted, that if any person shall write,
print, utter, or publish, or shall cause or procure to be written, printed,
uttered or published, or shall knowingly and willingly assist or aid in
writing, printing, uttering or publishing any false, scandalous and malicious
writing or writings against the government of the United States, or either
house of the Congress of the United States, or the President of the United
States, with an intent to defame the said government, or either house of the
said Congress, or the President, or to bring them, or either of them, into
contempt or disrepute; or to excite against them, or either, or any of them,
the hatred of the good people of the United States, &c. Then such person
being thereof convicted before any court of the United States, having
jurisdiction thereof, shall be punished by a fine not exceeding two thousand
dollars, and by imprisonment not exceeding two years."

On this part of the act, the following observations present themselves:

1. The Constitution supposes that the President, the Congress, and each of
its houses may not discharge their trusts, either from defect of judgment or
other causes. Hence, they are all made responsible to their constituents, at
the returning periods of election; and the President, who is singly entrusted
with very great powers, is, as a further guard, subjected to an intermediate
impeachment.

2. Should it happen, as the Constitution supposes it may happen, that either
of these branches of the government may not have duly discharged its trust, it
is natural and proper that, according to the cause and degree of their faults,
they should be brought into contempt or disrepute, and incur the hatred of the
people.

3. Whether it has, in any case, happened that the proceedings of either, or
all of those branches, evince such a violation of duty as to justify a
contempt, a disrepute or hatred among the people, can only be determined by a
free examination thereof, and a free communication among the people thereon.

4. Whenever it may have actually happened, that proceedings of this sort are
chargeable on all or either of the branches of the government, it is the duty
as well as right of intelligent and faithful citizens, to discuss and promulge
them freely, as well to control them by the censorship of the public opinion,
as to promote a remedy according to the rules of the Constitution. And it
cannot be avoided, that those who are to apply the remedy must feel, in some
degree, a contempt or hatred against the transgressing party.

5. As the act was passed on July 14, 1798, and is to be in force until March
3, 1801, it was of course, that during its continuance, two elections of the
entire House of Representatives, an election of a part of the Senate, and an
election of a President, were to take place.

6. That consequently, during all these elections, intended by the
Constitution to preserve the purity, or to purge the faults of the
administration, the great remedial rights of the people were to be exercised,
and the responsibility of their public agents to be screened, under the
penalties of this act.

May it not be asked of every intelligent friend to the liberties of his
country, whether the power exercised in such an act as this, ought not to
produce great and universal alarm? Whether a rigid execution of such an act, in
time past, would not have repressed that information and communication among
the people, which is indispensable to the just exercise of their electoral
rights? And whether such an act, if made perpetual, and enforced with rigour,
would not, in time to come, either destroy our free system of government, or
prepare a convulsion that might prove equally fatal to it?

In answer to such questions, it has been pleaded that the writings and
publications forbidden by the act, are those only which are false and
malicious, and intended to defame; and merit is claimed for the privilege
allowed to authors to justify, by proving the truth of their publications, and
for the limitations to which the sentence of fine and imprisonment is
subjected.

To those who concurred in the act, under the extraordinary belief that the
option lay between the passing of such an act, and leaving in force the common
law of libels, which punishes truth equally with falsehood, and submits the
fine and imprisonment to the indefinite discretion of the court, the merit of
good intentions ought surely not to be refused. A like merit may perhaps be due
for the discontinuance of the corporal punishment, which the common law
also leaves to the discretion of the court. This merit of intention,
however, would have been greater, if the several mitigations had not been
limited to so short a period; and the apparent inconsistency would have been
avoided, between justifying the act at one time, by contrasting it with the
rigors of the common law, otherwise in force, and at another time by appealing
to the nature of the crisis, as requiring the temporary rigour exerted by the
act.

But, whatever may have been the meritorious intentions of all or any who
contributed to the sedition-act, a very few reflections will prove, that its
baneful tendency is little diminished by the privilege of giving in evidence
the truth of the matter contained in political writings.

In the first place, where simple and naked facts alone are in question,
there is sufficient difficulty in some cases, and sufficient trouble and
vexation in all, of meeting a prosecution from the government, with the full
and formal proof necessary in a court of law.

But in the next place, it must be obvious to the plainest minds, that
opinions, and inferences, and conjectural observations, are not only in many
cases inseparable from the facts, but may often be more the objects of the
prosecution than the facts themselves; or may even be altogether abstracted
from particular facts; and that opinions and inferences, and conjectural
observations, cannot be subjects of that kind of proof which appertains to
facts, before a court of law.

Again: It is no less obvious, that the intent to defame or bring into
contempt or disrepute, or hatred, which is made a condition of the offence
created by the act, cannot prevent its pernicious influence on the freedom of
the press. For, omitting the inquiry, how far the malice of the intent is an
inference of the law from the mere publication, it is manifestly impossible to
punish the intent to bring those who administer the government into disrepute
or contempt, without striking at the right of freely discussing public
characters and measures: because those who engage in such discussions, must
expect and intend to excite these unfavourable sentiments, so far as
they may be thought to be deserved. To prohibit, therefore, the intent to
excite those unfavourable sentiments against those who administer the
government, is equivalent to a prohibition of the actual excitement of them;
and to prohibit the actual excitement of them, is equivalent to a prohibition
of discussions having that tendency and effect; which, again, is equivalent to
a protection of those who administer the government, if they should at any time
deserve the contempt or hatred of the people, against being exposed to it, by
free animadversions on their characters and conduct. Nor can there be a doubt,
if those in public trust be shielded by penal laws from such strictures of the
press, as may expose them to contempt or disrepute, or hatred, where they may
deserve it, in exact proportion as they may deserve to be exposed, will be the
certainty and criminality of the intent to expose them, and the vigilance of
prosecuting and punishing it; nor a doubt, that a government thus intrenched in
penal statutes, against the just and natural effects of a culpable
administration, will easily evade the responsibility, which is essential to a
faithful discharge of its duty.

Let it be recollected, lastly, that the right of electing the members of the
government, constitutes more particularly the essence of a free and responsible
government. The value and efficacy of this right, depends on the knowledge of
the comparative merits and demerits of the candidates for public trust; and on
the equal freedom, consequently, of examining and discussing these merits and
demerits of the candidates respectively. It has been seen, that a number of
important elections will take place whilst the act is in force, although it
should not be continued beyond the term to which it is limited. Should there
happen, then, as is extremely probable in relation to some or other of the
branches of the government, to be competitions between those who are, and those
who are not, members of the government, what will be the situations of the
competitors? Not equal; because the characters of the former will be covered by
the "sedition-act" from animadversions exposing them to disrepute
among the people; whilst the latter may be exposed to the contempt and hatred
of the people, without a violation of the act. What will be the situation of
the people? Not free; because they will be compelled to make their election
between competitors, whose pretensions they are not permitted, by the act,
equally to examine, to discuss, and to ascertain. And from both these
situations. will not those in power derive an undue advantage for continuing
themselves in it; which by impairing the right of election, endangers the
blessings of the government founded on it?

It is with justice, therefore, that the General Assembly have affirmed in
the resolution, as well that the right of freely examining public characters
and measures, and free communication thereon, is the only effectual guardian of
every other right, as that this particular right is levelled at, by the power
exercised in the "sedition-act."

The resolution next in order is as follows:

That this state having by its convention, which ratified the federal
Constitution, expressly declared, that among other essential rights, "the
liberty of conscience and of the press cannot be cancelled, abridged,
restrained or modified by any authority of the United States," and from
its extreme anxiety to guard these rights from every possible attack of
sophistry and ambition, having, with other states, recommended an amendment for
that purpose, which amendment was, in due time, annexed to the Constitution, it
would mark a reproachful inconsistency, and criminal degeneracy, if an
indifference were now shown to the most palpable violation of one of the rights
thus declared and secured; and the establishment of a precedent, which may be
fatal to the other.

To place this resolution in its just light, it will be necessary to recur to
the act of ratification by Virginia, which stands in the ensuing form:

We, the delegates of the people of Virginia, duly elected in pursuance of
a recommendation from the General Assembly, and now met in convention, having
fully and freely investigated and discussed the proceedings of the federal
convention, and being prepared as well as the most mature deliberation hath
enabled us to decide thereon, do, in the name and in behalf of the people of
Virginia, declare and make known, that the powers granted under the
Constitution, being derived from the people of the United States, may be
resumed by them, whensoever the same shall be perverted to their injury or
oppression; and that every power not granted thereby, remains with them, and at
their will. That, therefore, no right of any denomination can be cancelled,
abridged, restrained, or modified, by the Congress, by the Senate, or House of
Representatives, acting in any capacity, by the President, or any department or
officer of the United States, except in those instances in which power is given
by the Constitution for those purposes; and that, among other essential rights,
the liberty of conscience and of the press, cannot be cancelled, abridged,
restrained, or modified, by any authority of the United States.

Here is an express and solemn declaration by the convention of the state,
that they ratified the Constitution in the sense, that no right of any
denomination can be cancelled, abridged, restrained, or modified by the
government of the United States or any part of it; except in those instances in
which power is given by the Constitution; and in the sense particularly,
"that among other essential rights, the liberty of conscience and freedom
of the press cannot be cancelled, abridged, restrained, or modified, by any
authority of the United States."

Words could not well express, in a fuller or more forcible manner, the
understanding of the convention, that the liberty of conscience and the freedom
of the press, were equally and completely exempted from all
authority whatever of the United States.

Under an anxiety to guard more effectually these rights against every
possible danger, the convention, after ratifying the Constitution, proceeded to
prefix to certain amendments proposed by them, a declaration of rights, in
which are two articles providing, the one for the liberty of conscience, the
other for the freedom of speech and of the press.

Similar recommendations having proceeded from a number of other states, and
Congress, as has been seen, having in consequence thereof, and with a view to
extend the ground of public confidence, proposed, among other declaratory and
restrictive clauses, a clause expressly securing the liberty of conscience and
of the press; and Virginia having concurred in the ratifications which made
them a part of the Constitution, it will remain with a candid public to decide,
whether it would not mark an inconsistency and degeneracy, if an indifference
were now shown to a palpable violation of one of those rights, the freedom of
the press; and to a precedent therein, which may be fatal to the other, the
free exercise of religion.

That the precedent established by the violation of the former of these
rights, may, as is affirmed by the resolution, be fatal to the latter, appears
to be demonstrable, by a comparison of the grounds on which they respectively
rest; and from the scope of reasoning, by which the power over the former has
been vindicated.

First. Both of these rights, the liberty of conscience and of the
press, rest equally on the original ground of not being delegated by the
Constitution, and consequently withheld from the government. Any construction,
therefore, that would attack this original security for the one, must have the
like effect on the other.

Secondly. They are both equally secured by the supplement to the
Constitution; being both included in the same amendment, made at the same time,
and by the same authority. Any construction or argument, then, which would turn
the amendment into a grant or acknowledgment of power with respect to the
press, might be equally applied to the freedom of religion.

Thirdly. If it be admitted that the extent of the freedom of the
press, secured by the amendment, is to be measured by the common law on this
subject, the same authority may be resorted to, for the standard which is to
fix the extent of the "free exercise of religion." It cannot be
necessary to say what this standard would be; whether the common law be taken
solely as the unwritten, or as varied by the written law of England.

Fourthly. If the words and phrases in the amendment, are to be
considered as chosen with a studied discrimination, which yields an argument
for a power over the press, under the limitation that its freedom be not
abridged, the same argument results from the same consideration, for a power
over the exercise of religion, under the limitation that its freedom be not
prohibited.

For, if Congress may regulate the freedom of the press, provided they do not
abridge it, because it is said only "they shall not abridge it," and
is not said, "they shall make no law respecting it," the analogy of
reasoning is conclusive, that Congress may regulate and even
abridge the free exercise of religion, provided they do not
prohibit it, because it is said only "they shall not prohibit
it," and is not said, "they shall make no law
respecting, or no law abridging it."

The General Assembly were governed by the clearest reason, then, in
considering the "sedition-act," which legislates on the freedom of
the press, as establishing a precedent that may be fatal to the liberty of
conscience; and it will be the duty of all, in proportion as they value the
security of the latter, to take the alarm at every encroachment on the former.

The two concluding resolutions only remain to be examined. They are in the
words following:

That the good people of this commonwealth, having ever felt and
continuing to feel the most sincere affection for their brethren of the other
states; the truest anxiety for establishing and perpetuating the union of all;
and the most scrupulous fidelity to that Constitution, which is the pledge of
mutual friendship, and the instrument of mutual happiness; the General Assembly
doth solemnly appeal to the like dispositions in the other states, in
confidence that they will concur with this commonwealth in declaring, as it
does hereby declare, that the acts aforesaid are unconstitutional;18 and, that the necessary and proper measures will be
taken by each, for co-operating with this state, in maintaining unimpaired the
authorities, rights, and liberties reserved to the states respectively, or to
the people.

That the governor be desired to transmit a copy of the foregoing
resolutions to the executive authority of each of the other states, with a
request that the same may be communicated to the legislature thereof; and that
a copy be furnished to each of the senators and representatives representing
this state in the Congress of the United States.

The fairness and regularity of the course of proceeding here pursued, have
not protected it against objections even from sources too respectable to be
disregarded.

It has been said, that it belongs to the judiciary of the United States, and
not the state legislatures, to declare the meaning of the Federal Constitution.

But a declaration that proceedings of the Federal Government are not
warranted by the Constitution, is a novelty neither among the citizens, nor
among the legislatures of the states; nor are the citizens or the legislature
of Virginia, singular in the example of it.

Nor can the declarations of either, whether affirming or denying the
constitutionality of measures of the Federal Government, or whether made before
or after judicial decisions thereon, be deemed, in any point of view, an
assumption of the office of the judge. The declarations, in such cases, are
expressions of opinion, unaccompanied with any other effect than what they may
produce on opinion, by exciting reflection. The expositions of the judiciary,
on the other hand, are carried into immediate effect by force. The former may
lead to a change in the legislative expression of the general will; possibly to
a change in the opinion of the judiciary; the latter enforces the general will,
whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of
proceedings in the Federal Government, where can be the impropriety of
communicating the declaration to other states, and inviting their concurrence
in a like declaration? What is allowable for one, must be allowable for all;
and a free communication among the states, where the Constitution imposes no
restraint, is as allowable among the state governments as among other public
bodies or private citizens. This consideration derives a weight, that cannot be
denied to it, from the relation of the state legislatures to the federal
legislature, as the immediate constituents of one of its branches.

The legislatures of the states have a right also to originate amendments to
the Constitution, by a concurrence of two-thirds of the whole number, in
applications to Congress for the purpose. When new states are to be formed by a
junction of two or more states, or parts of states, the legislatures of the
states concerned are, as well as Congress, to concur in the measure. The states
have a right also to enter into agreements or compacts, with the consent of
Congress. In all such cases, a communication among them results from the object
which is common to them.

It is lastly to be seen, whether the confidence expressed by the resolution,
that the necessary and proper measures would be taken by the other
states for co-operating with Virginia in maintaining the rights reserved to the
states, or to the people, be in any degree liable to the objections which have
been raised against it.

If it be liable to objection, it must be because either the object or the
means are objectionable.

The object being to maintain what the Constitution has ordained, is in
itself a laudable object.

The means are expressed in the terms "the necessary and proper
measures." A proper object was to be pursued, by means both necessary and
proper.

To find an objection, then, it must be shown that some meaning was annexed
to these general terms, which was not proper; and, for this purpose, either
that the means used by the General Assembly were an example of improper means,
or that there were no proper means to which the terms could refer.

In the example given by the state, of declaring the alien and sedition-acts
to be unconstitutional, and of communicating the declaration to the other
states, no trace of improper means has appeared. And if the other states had
concurred in making a like declaration, supported, too, by the numerous
applications flowing immediately from the people, it can scarcely be doubted,
that these simple means would have been as sufficient, as they are
unexceptionable.

It is no less certain that other means might have been employed, which are
strictly within the limits of the Constitution. The legislatures of the states
might have made a direct representation to Congress, with a view to obtain a
rescinding of the two offensive acts; or, they might have represented to their
respective senators in Congress their wish, that two-thirds thereof would
propose an explanatory amendment to the Constitution; or two-thirds of
themselves, if such had been their option, might, by an application to
Congress, have obtained a convention for the same object.

These several means, though not equally eligible in themselves, nor
probably, to the states, were all constitutionally open for consideration. And
if the General Assembly, after declaring the two acts to be unconstitutional,
the first and most obvious proceeding on the subject, did not undertake to
point out to the other states a choice among the farther measures that might
become necessary and proper, the reserve will not be misconstrued by liberal
minds into any culpable imputation.

These observations appear to form a satisfactory reply to every objection
which is not founded on a misconception of the terms employed in the
resolutions. There is one other, however, which may be of too much importance
not to be added. It cannot be forgotten, that among the arguments addressed to
those who apprehended danger to liberty from the establishment of the General
Government over so great a country, the appeal was emphatically made to the
intermediate existence of the state governments, between the people and that
government, to the vigilance with which they would descry the first symptoms of
usurpation, and to the promptitude with which they would sound the alarm to the
public. This argument was probably not without its effect; and if it was a
proper one then, to recommend the establishment of the Constitution, it must be
a proper one now, to assist in its interpretation.

The only part of the two concluding resolutions that remains to be noticed,
is the repetition in the first, of that warm affection to the union and its
members, and of that scrupulous fidelity to the Constitution, which have been
invariably felt by the people of this state. As the proceedings were introduced
with these sentiments, they could not be more properly closed than in the same
manner. Should there be any so far misled as to call in question the sincerity
of these professions, whatever regret may be excited by the error, the General
Assembly cannot descend into a discussion of it. Those, who have listened to
the suggestion, can only be left to their own recollection of the part which
this state has borne in the establishment of our national independence, in the
establishment of our national Constitution, and in maintaining under it the
authority and laws of the Union, without a single exception of internal
resistance or commotion. By recurring to these facts, they will be able to
convince themselves, that the representatives of the people of Virginia, must
be above the necessity of opposing any other shield to attacks on their
national patriotism, than their own consciousness, and the justice of an
enlightened public; who will perceive in the resolutions themselves, the
strongest evidence of attachment both to the Constitution and to the Union,
since it is only by maintaining the different governments and departments
within their respective limits, that the blessings of either can be
perpetuated.

The extensive view of the subject thus taken by the committee, has led them
to report to the House, as the result of the whole, the following resolution:

Resolved, That the General Assembly, having carefully and
respectfully attended to the proceedings of a number of the states, in answer
to its resolutions of December 21, 1798, and having accurately and fully
re-examined and reconsidered the latter, finds it to be its indispensable duty
to adhere to the same, as founded in truth, as consonant with the Constitution,
and as conducive to its preservation; and more especially to be its duty to
renew, as it does hereby renew, its protest against "the alien and
sedition-acts," as palpable and alarming infractions of the Constitution.

[Notes of F.W. Randolph, converted to endnotes and numbered in sequence:]

1. The position that the powers of the Federal Government
result from a compact to which the states are parties, has been assailed
as if it assumed that the idea of a Constitution was thereby excluded, and the
government converted into a mere confederation. (1 Story's Comms. on
Constitution, 287.) But the essential question to which the attention of the
writer seems to have been directed, was not as to the nature of the
Constitution, whether it were an instrument of confederation, or of government,
but it was as to who are the parties thereto, the aggregate people of the whole
Union, or the states in their highest sovereign capacity, not represented by
their ordinary governments, but by delegates deputed for the sole purpose of
expressing the will of the people of each state on the subject.

Whether or not it follows that because the states are parties to the Federal
Government, they must, therefore, be the rightful judges in the last
resort of alleged usurpations by that government, in any or all of its
departments, is submitted to the reader upon the reasoning in the text. (See,
also, 1 Tuck. Bl. App. 170.)

2. This paragraph seems to have in view some observations
of Mr. GEORGE KEITH TAYLOR, in the debate on the Resolutions in 1798, ante,
pp. 122 to 126. The Resolutions, as originally introduced into the House of
Delegates, had the word "alone" following
"states," so as to make that clause read thus: — "to
which the states alone are parties." Mr. Taylor's remarks,
which are very ingenious, tended to show that the states, — which he
interpreted to mean the ordinary governments of the states, — were not
parties to the Federal Constitution, at all, much less, sole parties. His
argument so far prevailed as to induce Mr. GILES to move
to strike out the word "alone" in which Mr. JOHN TAYLOR of Caroline, the mover of
the resolutions, concurred, and it was stricken out accordingly. (See
ante, pp. 148 and 150.)

3. The cautious and moderate language of the text is worthy
of observation. The cases proper for interposition by the states are said to be
such only as involve deliberate, palpable, and dangerous breaches of
the Constitution, by the exercise of powers not granted. The objects
of interposition are merely to arrest the progress of the usurpation, and to
maintain the authorities, rights, and liberties of the states, as parties to
the Constitution.

Force, on this occasion, at least, appears to have been neither threatened
nor contemplated. The moral influence of the sentiment of the states and of the
people was relied upon. Not only does this appear from the declarations of Mr.
Madison, in his letter to Ingersoll, post, p. 257, but it is abundantly
manifested by the tenor of the debates on the resolutions, and by the report.
Thus Mr. MERCER, replying to Mr. GEORGE K. TAYLOR, holds this language:
"The gentleman from Prince George had told the committee that the
resolutions introduced by the gentleman from Caroline were calculated to rouse
the people to resistance, to excite the people of Virginia against the federal
government. Mr. M. did not see how such consequences could result from their
adoption. They contained nothing more than the sentiments which the people in
many parts of the state had expressed, and which had been conveyed to the
legislature in their memorials and resolutions, then lying upon the
table." See ante, p. 41. Again:

"The state believed some of its rights had been invaded by the late
acts of the federal government, and proposed a remedy whereby to obtain a
repeal of them. The plan contained in the resolutions appeared to Mr. M. the
most advisable. Force was not thought of by any one." Ante, p. 42.
Then, after citing some passages from the Federalist, to show that state
interposition had been contemplated by the authors of that work, he argues that
not only is the right of the states to communicate with each other defended by
that authority, but that the adoption of a regular plan of opposition, in which
they should combine all their resources, would also be justified by it.
"But no such wish," says he, "is entertained by the friends of
the resolutions; their object in addressing the states is to obtain a similar
declaration of opinion," &c. Ante, p. 44.

Mr. BARBOUR observed, "that the gentleman from
Prince George had remarked that these resolutions invited the people to
insurrection and to arms. But, Mr. B. said, that if he could conceive the
consequence foretold would grow out of the measure, he would become its
bitterest enemy, for he deprecated intestine commotion, civil war, and
bloodshed, as the most direful evils which could befall a country, except
slavery. A resort to arms was the last appeal of an oppressed, an injured
nation, and was never made but when public servants converted themselves, by
usurpation, into roasters, and destroyed rights once participated; and then it
was justifiable." Ante, p. 54. Again: "The gentleman from
Prince George was for the people's rising en masse, if the law was
unconstitutional. For his part, he was for using no violence. It was the
peculiar blessing of the American people to have redress within their reach by
constitutional and peaceful means." Ante, p. 59.

Mr. JOHN TAYLOR, of Caroline,
spoke of the threats of war, and the apprehension of civil commotion, towards
which the resolutions were said to have a tendency. "Are the
republicans," said he, "possessed of fleets and armies? If not, to
what could they appeal for defence and support? To nothing, except public
opinion. If that should be against them, they must yield." Ante, p.
113. And he is not less emphatic and distinct in a subsequent passage.
Ante, pp. 114-15. See also the report, post, pp. 230-31.

It has been suggested, however, as proof that resistance by force was
meditated, that Virginia prepared herself for the anticipated conflict by
establishing arsenals, and erecting armories. The fact standing alone, hardly
warrants the inference under any conceivable circumstances, but especially does
it not warrant it in the face of the declarations just cited of the prominent
guides and advocates of the action of the state, at that period. But, in truth,
the armory and arsenal bill was enacted 23d January, 1798, about six months
before the alien and sedition-laws were passed, and three months, probably,
before they were contemplated, at a time when Mr. Adams's administration,
though certainly not popular in Virginia, was not particularly obnoxious. Can
it be believed, indeed, that a party which could marshal so much talent and
character, and so respectable an array of numbers against the less extreme
measure of the resolutions of the succeeding session of 1798-9, when the
provocation was infinitely greater, would have failed to penetrate the
belligerent purpose of that bill, if any had existed, or that perceiving it,
they would have hesitated to expose and denounce it?

This note, protracted, as it is, ought not to be concluded without referring
to the temper of wise forbearance which, at this perilous crisis, was earnestly
inculcated by Mr. JEFFERSON. In a letter to Mr. JOHN TAYLOR, in June, 1798, he says:

"Mr. New showed me your letter, which gave me an opportunity of
observing what you said as to the effect with you, of public proceedings, and
that it was not unwise now to estimate the separate mass of Virginia and North
Carolina, with a view to their separate existence. It is true that we are
completely under the saddle of Massachusetts and Connecticut, and that they
ride us very hard, insulting our feelings, as well as exhausting our strength
and substance. Their natural friends, the three other eastern states, join them
from a sort of family pride, and they have the art to divide certain other
parts of the Union, so as to make use of them to govern the whole." Then,
after observing that this was not the natural state of things, and that time,
of itself, would bring relief, which besides was likely to be hastened by
impending events, he continues:

"Be this as it may, in every free and deliberating society, there must,
from the nature of man, be opposite parties, and violent dissension and
discords; and one of these, for the most part, must prevail over the other, for
a longer or shorter time. Perhaps this party division is necessary to induce
each to watch, and delate to the people the proceedings of the other. But if,
on a temporary superiority of the one party, the other is to resort to a
scission of the Union, no federal government can ever exist. If, to rid
ourselves of the present rule of Massachusetts and Connecticut, we break the
Union, will the evil stop there? Suppose the New England states alone cut off,
will our natures be changed? Are we not men still, to the south of that, and
with all the passions of men? Immediately we shall see a Pennsylvania and a
Virginia party arise in the residuary confederacy, and the public mind will be
distracted with the same party-spirit. What a game, too, will the one party
have in their hands, threatening the other that unless they do so and so, they
will join their northern neighbours! If we reduce our Union to Virginia and
North Carolina, immediately the conflict will be established between the
representatives of these two states, and they will end by breaking into their
simple units. Seeing, therefore, that an association of men who will not
quarrel with one another, is a thing which never yet existed, from the greatest
confederacy of nations, down to a town-meeting, or a vestry; seeing that we
must have somebody to quarrel with, I would rather keep our New England
associates for that purpose, than to see our bickerings transferred to
others." "It is true that, in the mean time, we are suffering deeply
in spirit, and incurring the horrors of a war, and long oppressions of enormous
public debt. But who can say what would be the evils of a scission, and when
and where they would end? Better keep together as we are, haul off from Europe
as soon as we can, and from all attachments to any portion of it," &c.
(3 Jeff. Mem., &c., 393.)

4. Judge Story holds that each department of the
government, and each member of every department, is the interpreter of the
Constitution for itself, in the first instance, whenever called upon to act
under it. If the question is not of a nature to be capable of a judicial
decision, he considers such determination by the department called on to act,
— whether it be the executive, or the legislative, — to be final. If
it be capable of judicial investigation, he regards the judicial power and the
Supreme Court as the head thereof, the final arbiter of the constitutionality
of the act.

As to the second observation in the text, that the judicial department may
also exercise or sanction dangerous powers, not granted by the Constitution,
Judge Story esteems it a case not to be supposed, or that, at all events, the
people, in forming the Constitution for the Union, — in like manner as in
forming the state constitutions, — have relied upon the judiciary as the
ultimate barrier against usurpation, or the exercise of unconstitutional power.

The difference between these views is certainly marked, but it is less
considerable than at first view may appear.

According to the text, if all the departments of government, including the
judiciary (where the question is of a nature to be submitted to it,) combine to
commit or to sanction, a deliberate, palpable, and dangerous violation
of the Constitution, the states, as parties to the Constitution, may
determine, in the last resort, whether the alleged violation has occurred, and
may interpose to arrest the evil.

Judge Story allows of no interposition by the states, but insists
that, in the case supposed, when the evil has become no longer endurable,
resort must be had, by the people and not by the states, to the
ultimate right of resistance.

Neither construction discards resistance to dangerous and palpable
usurpation. They only differ as to the means of ascertaining the usurpation in
the last resort, and of setting on foot the resistance, when
ascertained. The one refers it to the states as sovereign members of the
confederacy; the other to the people exclusively. (See 1 Story's Com. on
Const., 346 to 375.)

The constitutional remedies against the exercise of unconstitutional
power, in Judge Story's opinion, are: — if the Congress be the offender,
an appeal to the elective franchise, and, if need be, an amendment of the
Constitution; if the executive is guilty, an impeachment, and a new election;
if the judiciary, an impeachment, and an alteration, for the future, of the bad
law as judicially expounded.

5. The bank law referred to is that of 1791. Its
constitutionality was the subject of warm discussion in Congress. When it had
finally passed both houses, and was submitted to the President, he requested
the opinions of the members of the cabinet upon the constitutional question.
Mr. Hamilton deemed the law constitutional. An outline of his argument may be
seen in 2 Marshall's Washington, Notes, p. 5. Mr. Jefferson's opinion, which he
has himself preserved, was adverse to the power of Congress to incorporate a
bank. (See 4 Jeff. Mem., 523.) The President, after considerable hesitation,
signed the bill. That charter having expired in 1811, Congress then refused, in
the Senate by the casting vote of Geo. Clinton, the Vice-President of the
United States and President of the Senate, to renew it. In 1815, a bank bill
passed both houses of Congress, but encountered the veto of President Madison,
on the score of some objectional provisions contained in it. But two years
afterwards he gave his sanction to another law for the incorporation of a bank,
justifying his disregard of the constitutional objection, which in 1791 he had
pressed in Congress with great vigour, upon the ground that he felt himself
obliged by the legislative and executive precedents, which had occurred,
affirming the constitutionality of such a law. (See his letter to Mr.
Ingersoll, post, p. 257, and his veto message of 30th Jan., 1815.)

The question of the validity of the bank law of 1816 was soon brought before
the federal Judiciary, and in 1819, in the great case of M'Culloch v.
The Staff of Maryland, 4 Wheat., 316, the Supreme Court pronounced, by the
mouth of C. J. Marshall, an unanimous and decided opinion in favour of its
constitutionality. The sentiment upon the subject was not thereby quieted,
however. Judge Roane, of Virginia, reviewed the judgment of the Supreme Court
with freedom and ability, in a series of articles first published in the
Richmond Enquirer, in June, 1819, under the signature of "Hampden,"
and amongst the people, the dissentients were numerous and influential. It was
discussed also, along with several other constitutional questions, with his
usual acuteness, by Mr. John Taylor of Caroline, in a work called
"Construction Construed," which deserves more readers than, by reason
of its peculiarity of style, it has had, or is likely to have.

In July, 1832, President Jackson vetoed a bill renewing the charter of the
bank for fifteen years from 1836, resting his objections in part upon
constitutional grounds, and in part upon the danger to the institutions of the
country from so large a moneyed corporation. A similar fate, at the hands of
President Tyler, befell two other laws to incorporate a national bank in August
and September, 1841.

6. The act of Congress, of 5th June, 1794, imposing a tax
on carriages for the conveyance of persons, provoked a degree of opposition,
especially in Virginia, the reason of which it is not, at this day, easy to
understand. The complaint respecting it was that, although it was a direct tax,
yet it was laid uniformly through the states, instead of being apportioned
amongst the states, as the Constitution directs, according to population. One
Hylton, in Virginia, in order to test the question, refused to enter certain
carriages which he acknowledged himself to possess, and an action having been
instituted against him, in pursuance of the act, by the District Attorney, in
the name of the United States, an agreed case was submitted to the Court, upon
which a pro forma judgment was entered against the defendant, and
thereupon he obtained a writ of error from the Supreme Court of the United
States. That court pronounced the carriage tax not to be a direct tax, within
the meaning of the Constitution, and that it was proper, therefore, to make it
uniform. Congress, it was argued, possesses the power to tax all subjects of
taxation, without limitation, with the exception of a duty on exports. There
are two restrictions only, on the exercise of this authority: — 1. All
direct taxes must be apportioned; 2. All duties, imposts, and excises
must be uniform. If the carriage tax were not a direct tax, within the meaning
of the Constitution, nor a duty, impost, or excise, Congress was under no
restriction as to the mode of laying it, in which case the tax ought to he
uniform. But the Constitution could not have meant by a direct tax,
which it orders to be apportioned, one which could not, with any regard to
equality of burden, be apportioned, and it the tax on carriages could not be
equally apportioned, it was, for that reason, not a direct tax. That it could
not be so apportioned was manifest, since the number of carriages in the
several states bore no relation to population, and consequently the tax on them
might be $10 in one state, and $100 in another. The Court intimated an opinion
that a direct tax, in the sense of the Constitution, could mean nothing but a
tax on what is inseparably annexed to the soil, or otherwise capable of
apportionment, under all circumstances, according to population, such as a tax
on lands or persons, including slaves. (Hylton v. U. States, 3 Dall.,
171.)

This view seems to have been acquiesced in, and when, in 1813, during the
war with Great Britain, it was deemed expedient to resort to extraordinary
taxation, a tax on carriages was again imposed according to the rule of
uniformity, (4 Laws of United States, 570.)

7. This report on manufactures, by Mr. Hamilton, is an
elaborate exposition of the protective policy, in all its economical bearings,
with reference especially to certain leading articles, such as fabrics of
metals, of flax and hemp, of cotton, of wool, of silk, &c.

The constitutional power of the federal government to apply encouragement to
manufactures, he disposes of very summarily, employing a process of reasoning
not a little formidable to those who desire to maintain the organization of
that government, as one of specific and limited powers. The sentence quoted in
the text, however, is somewhat qualified by what follows. "The only
qualification," Mr. Hamilton proceeds to observe, "of the generality
of the phrase in question which seems to be admissible, is this, that the
object to which an appropriation is to be made be general and not
local, its operation extending in fact, or by possibility, throughout
the Union, and not being confined to a particular spot. No objection ought to
arise to this construction from a supposition that it would imply a power to do
whatever else should appear to Congress conducive to the general weltare. A
power to appropriate money, with this latitude, which 13 granted, too, in
express terms, would not carry a power to do any other thing, not authorized by
the Constitution, either expressly or by fair implication." (See the
Report, — 7 Amer. State Papers, 136.)

8. This report will be found 20 Am. State Papers, 154. It
proposed to establish a society under the patronage of the general government,
which should extend its influence through the whole country, and comprehend the
extensive object of national improvement, but especially the promotion
of agriculture. It was to have been a body corporate, capable of holding a
limited amount of property, and was to be composed, in part, of the members of
Congress, the judges of the Supreme Court, and the heads of departments.

9. This argument, extending as it does, to governments of
general, as well as to those of specified powers, is pressed too far. A state
may prescribe what conditions it will to the admission of aliens, and amongst
others, the condition which, indeed, may well he understood as implied, of
dismissal when their presence becomes disagreeable. (Vattel, B. II.
§§ 94, 100, and 101.) Whether the power to prescribe conditions has
been conferred, in our system, upon the federal or the state governments, or
upon neither, is a different question.

12. The idea that reprisals cannot lawfully be made upon
persons, or property within the country, and under the faith of its laws, is
plainly not necessary to the argument. The proposition that such reprisals are
inadmissible is sustained by the authority of Vattel (B. II., § 344, and
B. III., § 63,) and others, and is certainly conformable to the general
usage of nations. If a state chooses, however, to adopt a less liberal policy,
it cannot, for so doing, be reproached with the violation of any principle of
international law. (See Martens' Summ. B. VIII., c. ii., § 5. The
Boedes-Lust, 5 Bob. Adm'y Rep. 246. Brown v. United States, 8 Cranch,
121.)

13. The argument contained in the report here referred to,
(which may be seen 20 Am. State Papers, 181), in vindication of the
constitutionality of the alien and sedition laws, is condensed, but able. It
will repay the perusal of the diligent student, who desires audire et
alteram partem.

15. The argument that the sedition-act was justified by the
common law, and that the common law is part of the law of the Federal
Government, is stated at length by Mr. George K. Taylor, in the debate
on the resolutions, Ante, p. 133, et seq. See, also, 1 Tuck. Bl.
Part I. Appendix, p. 378, n. E.

16. The phrase "cases in law and equity"
undoubtedly means cases in law, and cases in equity, and both were made
cognizable by the federal judiciary. Whilst, then, there cannot be criminal
cases in equity, as the text observes, there may be criminal cases at law, and
so the expression in question would include such cases. The reasoning is not
much aided by this observation of the text. It is fortunately strong enough
with. out it.

17. If this mode of argument were correct, it would in like
manner exclude all cases at law, as well of a civil as a criminal
nature, for the seventh amendment to the Constitution secures trial by jury in
the former, as it had already been secured in the latter, and further declares,
that no fact tried by a jury shall be otherwise re-examined in any court of the
United States, than according to the rules of the common law. The general
argument to prove that the common law is no part of the law of the Federal
Government is irrefutable, but the conclusion is not helped by the inferences
attempted to be drawn from the phrase "cases in law and equity."

18. In the original resolutions as submitted by Mr. John
Taylor, there followed after the word "unconstitutional," the words
"and not law, but utterly null, void, and of no force or
effect," In the course of the debate, they were stricken out upon
motion of Mr. Taylor himself. (See ante, p. 150.) Mr. Madison's
explanation of this fact, in his letter to Mr. Everett, (see post.
Appendix, p. 256,) is, that although these words were, in fact, but synonymous
with "unconstitutional," yet to guard against a misunderstanding of
this phrase, as more than declaratory of opinion, the word
"unconstitutional" was alone retained as not liable to that danger.
This explanation is abundantly supported by the circumstances. Mr. John Taylor
had contended that the resolution in question, merely expressed the
opinion of the legislature, such as it was competent to it to express,
as a necessary concomitant of an attempt to procure an amendment to the
Constitution from the other states. (Ante, p. 112-13.) Mr. G. K. Taylor,
on the other hand, insisted that the words used, imported not merely an
opinion, but a fact, which discharged the people from any submission to
the laws thus denounced (ante, p. 140); and then Mr. J. Taylor moved to
strike out the words above mentioned.